Barry v. Niessen

• Decision Date: 22 April 1902
• Citation: 90 N.W. 166,114 Wis. 256
• Parties: BARRY v. NIESSEN.
• Court: Wisconsin Supreme Court

114 Wis. 256

90 N.W. 166

BARRY

v.NIESSEN.

Supreme Court of Wisconsin.

April 22, 1902.

Appeal from circuit court, Racine county; Frank M. Fish, Judge.

Action by Ella Barry against certain persons. Gertrude Niessen intervened. Action was dismissed as to all but said Niessen, and from a judgment adverse to her she appeals. Affirmed.

This was an action for the partition of certain real estate in the city of Racine. The plaintiff's rights to an undivided one-quarter of the premises in question were undisputed, except by the appellant, Gertrude Niessen. The material facts in the case were undisputed, and were as follows: One Virginia Lugg was the owner of the real estate in question, and died at Racine, Wis., intestate, February 13, 1899, leaving as her heirs at law four children, viz., Lydia C. Thompson, Alexia V. Ritz, Martha Lugg, and Herbert J. Barry, each of whom became the owner of an undivided one-fourth interest in the property. The said Barry prior to August, 1899, had married the plaintiff, Ella Barry, and said Ella Barry in August, 1899, commenced a divorce action against said Herbert Barry; and during the pendency of said action the said Herbert deeded to the said Ella, in lieu of alimony, his interest in the said real estate, and by the final judgment in said divorce action, in September, 1899, the said transfer of said real estate in lieu of alimony was ratified and confirmed. Some years prior to the marriage of said Herbert Barry and the plaintiff, and in November, 1891, the appellant, Gertrude Niessen, had commenced a bastardy proceeding against the said Herbert Barry in the circuit court of Racine county, and on April 13, 1892, after trial and a verdict of guilty, the said Herbert Barry was adjudged to be the father of the child of the said Gertrude Niessen, and it was further adjudged that he pay the sum of $11.25 costs, and that he pay to the said Gertrude Niessen the sum of $100 per year from the date of said judgment until said child should become 13 years of age, and that he furnish a bond in the sum of $500 for the compliance on his part with the said judgment. No bond was furnished, and the said Herbert Barry was confined in the county jail for ninety days, at the expiration of which time he was released. No part of the judgment has ever been paid. At the time of the rendition of the judgment, the clerk of the circuit court made the following entry upon the judgment docket:

“State of Wisconsin, Plff., vs. Herbert J. Barry, Def. E. O. Hand, Dist. Atty. April 13, 1892, at 3 o'clock p. m.

Amount--

+-----------------+
                ¦Costs--¦$111.25. ¦
                +-----------------+
                

Amount to become due.”

No attempt was made by Gertrude Niessen to collect the judgment by the issuance of execution. September 26, 1899, the plaintiff commenced this action of partition in the circuit court of Racine county, making the other heirs of Virginia Lugg defendants. On January 3, 1900, Gertrude Niessen appeared and intervened in the action, and claimed that she had a lien against that portion of said real estate owned by Ella Barry, because of the bastardy judgment aforesaid, and prayed that her lien be enforced by the court. A stipulation was entered into by the parties May 3, 1900, by which the partition suit was dismissed as against all the parties excepting Gertrude Niessen, the defendants paying into court $825, which was agreed to be the full share of Ella Barry in the real estate in question, and which sum was to be held in court subject to the determination of the contest between Ella Barry and Gertrude Niessen. It was admitted that the child of Gertrude Niessen had been supported by her since the date of the bastardy judgment, April 13, 1892, and it was found that there was due upon the judgment the sum of $1,016. Upon these facts the circuit court held that the bastardy judgment did not become a lien...