Yates v. Yates

165 Wis. 250 | Wis. | 1917

Rosenberry, J.

It is conceded that under the general rule laid down in Will of McNaughton, 138 Wis. 179, 118 N. W. 997, 120 N. W. 288, no compensation can be allowed to an unsuccessful guardian ad litem payable out of the fund under control of the court in excess of taxable costs or a sum in the nature thereof as taxed between party and party, in the absence of special legislative authority. It is contended, however, that special legislative authority exists in the present case by virtue of the following statute:

“Section 2369. After a judgment providing for alimony or other allowance for the wife and children, or either of them, or for the appointment of trustees as aforesaid the court may, from time to time, on the petition of either of the parties, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the said matters which such court might have made in the original action. . . .”

By the death of the wife the allowance for alimony was at an end, as alimony continues only during the joint lives of the parties. Maxwell v. Sawyer, 90 Wis. 352, 63 N. W. 283. By the death of the mother the right of the father over the child was restored and lié was legally bound to provide for all her wants, and be was entitled under the facts and circumstances shown in this case to ber care and custody. Taylor v. Jeter, 33 Ga. 195; Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880; 9 Ruling Case Law, 479; Clarke v. Lyon, 82 Neb. 625, 118 N. W. 472, 20 L. R. A. n. s. 171 and note; Barnes v. Long, 54 Oreg. 548, 104 Pac. 296, 25 L. R. A. n. s. 172; Wilson v. Mitchell, 48 Colo. 454, 111 Pac. 21, 30 L. R. A. n. s. 507. Therefore, when the interlocutory judgment was modified by the judgment in the special proceeding had upon the petition of the defendant, it was no longer a judgment for alimony or other allowance for wife or child or for the appointment of a trustee. The action was terminated and the whole matter set at rest.

While in a proper case the court may, upon petition made in accordance with the statute, make any judgment in the matter which it might' have made in the original action, the judgment can be revised or altered only when the petition is made by a party for revision or alteration in the respects enumerated in the statute. The petition in this case is not made by a party, and it is not one to revise or alter the judgment respecting the amount of alimony or the allowance and payment thereof, or respecting the appropriation and payment of principal and income of the property held in trust for the benefit of the wife and child. The petition here is a petition to fix the compensation of a guardian ad litem, and to make the operation of the judgment in the special proceeding by which the trust was terminated contingent upon the payment of any sum found to be due to the guardian ad litem. This clearly is not within the terms of the statute. Therefore the statutory authority required under the decision in the McNaughton Will Case does not exist and the petition must be dismissed.

By the Court. — Judgment reversed, with directions to dismiss the petition.