88 Wis. 461 | Wis. | 1894
This is a proceeding to partition certain real estate lying in the county of Waukesha in this state, among the heirs at law of William Yoelz, deceased, and Caroline Yoelz, the widow of the said William Yoelz, deceased, who was in possession of a portion of said lands as. her homestead. The situation of said real estate having-been ascertained by the report of a referee, with the view of ascertaining whether the same should be divided, between said parties, or sold and the proceeds thereof distributed among the same, judgment was entered for the sale of the same, on default of the defendants. By said judgment the homestead, right of the said Co/roline Yoelz was also ordered to be sold, and “ that the purchaser should have said lands discharged from ail claim by virtue of such homestead and the dower right of said Caroline Yoelz.” Thereupon the said Caroline Yoelz and Lov,is Yoelz petitioned the court to stay all further proceedings in said partition.
It may be observed that this judgment is not to sell the interest or title of the heirs in remainder or reversion after the homestead right of the widow, Caroline Voelz, in the real estate has expired, so that the question whether any such estate is subject to partition under the statute is not material. The judgment is that the land in which the said Caroline has a homestead right shall be sold, and the purchaser hold the same “discharged from all claim bv virtue of such homestead and dower rights.” On such sale, the widow, the said Caroline, is divested of all her homestead right in said lands or any part thereof. The learned counsel of the appellants contends that the court had no jurisdiction to subject to either partition or sale the homestead of the said widow, Caroline Voelz, or to divest her thereby of her title to the same. This contention is unquestionably correct.
1. The statute confers no such jurisdiction on the courts. Sec. 3101, R. S., provides as follows: “ All persons holding lands as joint tenants or tenants in common may have partition thereof by civil action, in the manner provided in this chapter.” There is nothing more self-evident than that the homestead of the widow is not held as a joint tenancy or tenancy in common. Her right, as well as possession, are exclusive of all others.
2. This is also shown by the nature of the homestead right. It consists of forty acres of agricultural land and the dwelling house thereon, ovmed and occupied by any resident of the state, and selected by him. as such. R. S. sec. 2983. “ The homestead means a place of residence, im
3. There is concurrent jurisdiction in the county court for the partition of estates to the heirs, and partition of the homestead of the widow is expressly excluded. Sec. 3954, li. S., provides “that when the term of a widow entitled to a homestead right, or dower, or other life estate in the lands of a deceased person, shall expwe, the reversion may be assigned to the persons entitled to the same,” etc. “ An action for partition can only be maintained by one having the actual or constructive possession of the premises, or the right to the same.” Morse v. Stockman, 65 Wis. 36.
Our laws have thrown around the homestead every necessary protection for the humane and beneficent use for which it was designed, and no such exception by which the widow could be divested of it is found in the statute. It ■would require positive legislation to subject the widow’s homestead to the uncertain tenure of the capricious action of the heirs, whenever they might wish to have a partition or sale of the lands of the estate. There is not only no such provision, but, as we have seen, the statutes and the nature of the homestead right preclude any such interference with it. Where the widow’s homestead is provided for in other states, it is held not to be subject to partition. Keyes v. Hill, 30 Vt. 767; Doane v. Doane, 33 Vt. 652; Hoffman v. Neuhaus, 30 Tex. 636; Nicholas v. Purczell, 21 Iowa, 265; Dodds v. Dodds, 26 Iowa, 311.
By the Court.— The order of the circuit court is reversed, •and the cause remanded with direction to set aside or modify the judgment in the main case in accordance with this opinion.
It is believed that the decision of the court in this case is out of harmony with the whole current of its decisions on the subject of jurisdiction. The question to be adjudicated is whether the judgment and order of sale made by the circuit court, and which are assailed by this motion, were made in a case where the court wras without jurisdiction to make them, and are void; or whether they were made in a case within the jurisdiction of the court, and, if irregular, are simply erroneous. If they are void, they can be vacated on this motion. If they are' erroneous only, they cannot be vacated, or modified even, on this motion, but are valid until reversed upon appeal. The question turns upon the point whether they were made in a matter which was within the jurisdiction of the circuit court.
Jurisdiction is defined to be “the power to hear and determine causes.” It is defined by the present chief justice •of this court in Monroe v. Ft. Howard, 50 Wis. 228, to be the power to pronounce judgment.” It is nowhere defined to be “ the power to pronounce the right judgment.” It is broader than that. It includes also the power to pronounce a wrong judgment. Jurisdiction of the person is obtained by the service of process. Jurisdiction of the subject matter is power to adjudicate concerning the gen
The plaintiffs brought an action for the partition of certain premises. The defendant Oaroline Voelz, their mother, the widow of their deceased father, had an estate of homestead in a part of such premises. The complaint showed her interest, and asked that it be included in the judgment for partition and order of sale. She was made a party defendant, and the summons was served upon her. She made no defense. The jurisdictional question involved here is this: Had the circuit court power to determine whether or not that homestead estate was subject to be partitioned? Certainly, the court had jurisdiction of the defendant by due service of the process. Equally it had the power to adjudicate concerning the general question involved; that is, what estates are subject to be partitioned. The question of jurisdiction, in a particular case, turns upon the answer to the question, Had the circuit court power to “ hear and determine,” “ to pronounce judgment ” on the question whether the plaintiff has a right to the relief which he asks? “Jurisdiction does not relate to the right of the parties as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced, nor the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision .upholding the jurisdiction of the court is entirely consistent with a denial of any equity, either in the plaintiff or in any one else. The case we are considering illustrates the distinction I am endeavoring to point out as well as any supposed case would. It presents these questions: Have the plaintiffs shown any right to the relief which they seek? And has the court authority to determine whether or not they have shown
Of the same purport are the decisions of this court. An early case — Tallman v. McCarty, 11 Wis. 401 — has been many times cited and followed as an authoritative case. In that case the rule is stated by DixoN, O. J., as follows: “No order which the courtis empowered, under any circumstances in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity merely because it was made improvidently or in a manner not warranted by law or the previous state of the case. The only question in such case is, Had the court or tribunal the power, %mder any circumstances, to make the order or perform the act? If this be answered in the affirmative, then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose. In the case before us, it was for the circuit court to determine, in the first instance, when and how the authority with which it was invested to direct a sale should be exercised; and if, in so doing, it committed an
In the case at bar this court holds that the judgment and order of sale, so far as they aifect the widow’s homestead estate, are void for want of jurisdiction, for the reason that they are not warranted by law. But in Franhfurth v. Anderson, supra, judgments entered by the clerk by default, on complaints which did not state a cause of action, were held, on the authority of Tollman v. McCarty, to be irregular only, and not void. It is believed that the principle which governs that case should govern this case also. There is no distinction in principle possible. In either case the judgment entered was contrary to the law of the case. It was not warranted or authorized by the law. But it has never been the law in this state that the judgment of a court which had jurisdiction of the parties and of the subject matter is without jurisdiction, on the sole ground that it is not warranted by, or is contrary to, the law applicable to that particular case. That is the most that can be said against this judgment,— it was not authorized by the law. The court may have mistaken the law, but the mistake was within its jurisdiction. In Monroe v. Ft. Howard, 50 Wis.
The decisions of other courts are not entirely harmonious on this question. One, only, will be cited. Dugan v. Baltimore, 70 Md. 1. This is cited because it seems to be on all fours with the case at bar, and is the decision of an eminently respectable court. The right to make partition and sale in Maryland, as in this state, is governed by statute. The statute gave no power to the court to make partition or sale of an undivided parcel of land. The court entertained an action to make partition of an undivided one-fourth of a parcel of land, and, because partition could not be made, ordered it to be sold. In a collateral action it was insisted that the sale was not authorized by the statute and was void. The court agreed that the statute did not authorize the sale, but said: “But, while such is our construction of the statute, we cannot agree that the court, in passing the decree, had no jurisdiction of the subject matter, and that the purchaser acquired no title to the interest sold under it. The bill was filed for the partition or sale of- an undivided fourth part of the property in which the plaintiff and defendants 7were tenants in common. It was filed under art. 16, sec. ,99, of the Code. The court had a general jurisdiction to decree a sale of property held by co-tenants, and it had the jurisdiction to determine whether, under the Code, it had the power to sell an undivided interest in the property. Jurisdiction is the power to hear and determine. If the judgment of the court is erroneous, the remedy is by appeal; and, until reversed upon appeal, the judgment is binding on the parties to the suit.”
For these reasons, and on these authorities, it is believed that, if error exists, it is error merely, such as can be reviewed by this court upon appeal only, and cannot be oor-
The order of the circuit court should be affirmed.