Willeard v. Winkelman, 191 Wis. 406

191 Wis. 406 | Wis. | 1926

Vinje, C. J.

The power of a court of equity in a separate action to grant relief from a judgment of divorce as to property rights after the time for appeal has expired and even when- the other spouse is dead was asserted in Johnson v. Coleman, 23 Wis. 452. That no relief under such circumstances can be had in the divorce action itself is settled by Johnson v. Coleman, supra; Bassett v. Bassett, 99 Wis. 344, 74 N. W. 780; and Graham v. Graham, 149 Wis. 602, 136 N. W. 162. And where the property sought to be reached is located outside the state, substituted service would give our court no jurisdiction thereof where the other spouse is dead, for in such a case there would be no question of personal status but merely of property rights to be adjudicated. Moyer v. Koontz, 103 Wis. 22, 79 N. W. 50.

We are strongly urged to reverse the order and judgment of the lower court upon the authority of Johnson v. Coleman and upon equitable grounds. The facts in the two cases are radically different. In the Johnson Case the parties had entered into a written contract of voluntary separation, and the husband falsely stated that his wife had deserted him and falsely stated that he did not know her residence and secured service by publication which did not come to her knowledge. In this case the plaintiff wilfully deserted the husband and she was served with summons and complaint, and the very issue she now seeks to have litigated was tendered her in the divorce action. In the Johnson Case the wife did not know of the existence of the divorce action until the time for áp-peal had expired; in this case the wife was duly served and had an opportunity to appear in the divorce action and litigate her rights.

But it is urged that the plaintiff believed the allegations in the complaint as to her husband’s amount of property and therefore did not appear. To allow such a reason to constitute the. basis for an equitable action to set aside a judgment would be to put a premium upon credulity and laches and to render almost every default judgment subject to be set aside by a court of equity. One opportunity to litigate a matter is all that the law contemplates. The plaintiff had hers. Besides, even though she thought he had no property she might have appeared for the purpose of getting alimony out of his earnings if she thought herself entitled to it. She elected not to appear in the divorce action and she must abide the result of her election.

We agree with the trial court that there seems no possibility of an amendment that will state a cause of action, and therefore final judgment was properly rendered.

By the Court. — Order and judgment affirmed.