211 Wis. 149 | Wis. | 1933
The following opinion was filed February 7, 1933 :
On December 7, 1925, in an action for divorce pending between the plaintiff (then Beatrice N. Preston) and the above named defendant Julius H. Preston, judgment was entered in favor of the plaintiff awarding her alimony and providing for substitution of final division of property in lieu of alimony upon certain conditions. On February 1, 1930, this judgment was so modified as to substitute final division of property for alimony. On March 2, 1931, the court made an order amending the summons to bring in as party defendants the mother of the defendant Julius H. Preston and the Northwestern Mutual Life Insurance Company, permitting the plaintiff to file an “amended supplemental complaint” and requiring the defendants to answer. The insurance company and Julius H. Preston filed answers. The insurance company thereafter moved the court to vacate the order above mentioned on the ground that the court was without jurisdiction to make it, and to permit the withdrawal of its answer. Julius H. Preston made like motion. The motions were denied on February 23, 1932. From the order of denial the insurance company appeals.
Only such orders may be brought to this court on appeal as fall within sec. 274.33, Stats. The order involved,
We are constrained to hold the order not appealable. Where attempt is made -to appeal from a non-appealable order this court is without jurisdiction. Gilbert v. Hoard, 201 Wis. 572, 230 N. W. 720; Estate of Fish, 200 Wis. 61, 227 N. W. 272; Appleton v. Greenspon, 202 Wis. 322, 232 N. W. 598. It is regrettable, in the instant case, that this may not be done, as it seems quite plain that we would be required to reverse the order had we the power to do so, upon at least two grounds.
(1) The judgment of February 1, 1930, being one awarding final division and distribution, no other provisions can thereafter be made for the wife. Sec. 247.32, Stats.; Thompson v. Thompson, 73 Wis. 84, 40 N. W. 671; Lally v. Lally, 152 Wis. 56, 138 N. W. 651.
(2) There is no basis for holding the insurance company as a party defendant unless the court obtains jurisdiction over Elizabeth Preston. She declines to appear herein, and jurisdiction over her cannot be obtained.
The purpose of holding the insurance company is to impound money which may contingently some time become due to Julius H. Preston from the defendant insurance company under a matured life insurance policy in which the interest of Julius H. Preston has been assigned by him to his mother and which assignment the plaintiff seeks by her so-called supplemental complaint to have set aside as a fraud
These statements are made in the hope that they may result in dismissal of the proceeding below and avoidance of further litigation. It is obvious that the issues attempted to be raised by the appeal, which were fully discussed and ably set forth in the briefs, can only be effectively passed upon by this court when presented under a writ of prohibition or appeal from a final order entered after trial below.
By the Court. — It is ordered that the appeal is dismissed. No costs will be taxed against the appellant except clerk’s fees.
A motion for a rehearing was denied, without costs, on April 11, 1933.