Arndt v. Burghardt (In re Burghardt's Will)

• Decision Date: 04 April 1917
• Citation: 165 Wis. 312,162 N.W. 317
• Parties: ARNDT v. BURGHARDT. IN RE BURGHARDT'S WILL.
• Court: Wisconsin Supreme Court

165 Wis. 312

162 N.W. 317

ARNDT

v. BURGHARDT.IN RE BURGHARDT'S WILL.

Supreme Court of Wisconsin.

April 4, 1917.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Proceedings in the estate of Wm. F. Burghardt, deceased, by Laura Burghardt, against Anna Arndt, executrix. Judgment for claimant, and the executrix appeals. Affirmed.

A judgment of divorce was entered in Illinois in favor of claimant and against her then husband, William F. Burghardt, by the terms of which she was awarded the custody of the minor child, Ella, then two years old, with no provisions for the payment of anything other than an allowance of $2 per week for the support of the child. No further steps were taken by either party in that divorce action subsequent to the judgment. The defendant paid on this judgment from the time of its entry on February 15, 1897, until October 16, 1898, when he left Illinois and came to Wisconsin, where he resided until his death February 13, 1913. He left $1,000 to the daughter, Ella, who has resided with claimant continually. Mrs. Burghardt filed a claim against his estate herein for the full amount claimed to be due for alimony from October, 1898, and interest thereon. The claim was allowed for the ten years preceding the death of Burghardt at an amount which was stipulated to be $1,278, and from the judgment for that amount with costs, the executrix appeals.Ernst Von Briesen, of Milwaukee, for appellant.

Litzinger, McGurn & Reid, of Chicago, Ill., and Quarles, Spence & Quarles, of Milwaukee, for respondent.

ESCHWEILER, J. (after stating the facts as above).

It is contended that the trial court erred in admitting as evidence a document which purported to be a copy of the divorce judgment of the Illinois court, and further, that if such evidence should have been received, then the court erred in holding that the judgment or decree was such as would be recognized or enforced in this state.

The document offered in evidence purports on its face to be a copy of a judgment of the circuit court for Cook county with the seal attached and a certificate of the clerk. At the time it was offered in evidence appellant's counsel objected to it on the ground that it was incompetent, irrelevant, and immaterial and not properly certified. The court then asked counsel “in what respect not properly certified,” to which counsel responded:

“I think it lacks certification in that it does not say that the clerk compared it with the original. I do not care to press that. I would like certification.”

Upon which the court ruled that the same would be received subject to the objection. No further objections appear to have been made or questions raised about the offer during the trial.

[1] The certificate of the clerk to the document offered contained no allegation that such copy had been compared with the original record, in that respect failing to comply with the provisions of section 4140, Stats. Wis. It had no accompanying certificate from the judge of the Illinois court to the effect that the attestation by the clerk is in due form as required by the laws of the United States. R. S. § 905; section 1519, U. S. Comp. Stats. 1913. So that, on the face of it, it did not comply with the provisions of section 4145, Stats. Wis., which authorizes these two methods of proof. It was therefore inadmissible as then presented if proper objections thereto had been made. Hackett v. Bonnell, 16 Wis. 471;Halfhill v. Malick, 145 Wis. 200, 213, 129 N. W. 1086.

[2] It is also insisted that it should not have been received in evidence for the reason that there does not appear to have been any signature thereon of the judge who tried the cause. No statutes or decisions of Illinois were offered in evidence, and we must therefore assume that the law governing such records is the same there as in this state. No such signature is necessary in order to have a valid judgment in this state. Allen v. Voje, 114 Wis. 1, 89 N. W. 924;Wallis v. First Nat. Bank, 155 Wis. 533, 145 N. W. 195.

[3] It further appears from the uncontradicted testimony that payments were made by the defendant in accordance with the terms of this judgment. A letter written by deceased to claimant was received in evidence without objection, which from its terms might be considered as a recognition of the existence of such judgment. Upon the attitude therefore of counsel taken at the time of the offering of this record, and the subsequent evidence and proceedings, we cannot say that it was error...