Bassett v. Bassett

• Decision Date: 12 April 1898
• Parties: BASSETT v. BASSETT.
• Court: Wisconsin Supreme Court

99 Wis. 344

74 N.W. 780

BASSETT

v.BASSETT.

Supreme Court of Wisconsin.

April 12, 1898.

Appeal from Fond du Lac county court; A. E. Richter, Judge.

Action by Adelia Bassett against Israel Bassett. The plaintiff filed a petition to open the judgment in her favor for divorce, and for an additional judgment for alimony. The court filed an order that the case was a proper one for alimony, and fixing a date for hearing proofs for purpose of fixing the amount thereof, and defendant appealed. Reversed.

In May, 1889, plaintiff filed a complaint for divorce against defendant in county court, Fond du Lac county, alleging sufficient grounds therefor, and also setting out his property interests and income, and demanded a share of his property as alimony. Pending the suit, she obtained an order for temporary alimony and suit money; and, upon his neglect to comply therewith, she sought to have the defendant punished for contempt. The contempt proceedings were dismissed, and on May 20, 1889, plaintiff was granted an absolute divorce; but no provision of any kind was made in the judgment for alimony, and no division of property was made. In September, 1897, the plaintiff filed a petition to open the judgment, and to procure an additional judgment for alimony, setting out that defendant was the owner of the same property described in the complaint, and that she was in needy circumstances. An order to show cause was issued, and, upon the hearing of the same, the county court found that this was a proper case in which to allow alimony, and fixed a date for hearing proofs for the purpose of fixing the amount of alimony and the terms of such further additional judgment. The defendant filed his exceptions, and appealed to this court from the order so entered.E. S. Bragg, for appellant.

De Witt C. Priest, for respondent.

BARDEEN, J. (after stating the facts).

The question involved in this appeal is new and interesting, and is raised for the first time in this court. It depends largely, if not entirely, upon the proper reading and construction of section 2369, Rev. St., which is as follows: “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 judgment thereof, * * * and may make any judgment respecting any of said matters which such court might have made in the original action. But when a final division of the property shall have been made under the provisions of section 2364, no other provision shall be thereafter made for the wife.” The natureof the judgment and any power of the court over it must be determined by the proper construction of this statute. Except in case coming within some statutory power, it is the settled law of this state that the courts have no power to revise, alter, or set aside their judgments after the term at which they were rendered. Insurance Co. v. McCormick, 20 Wis. 265;Salter v. Hilgen, 40 Wis. 363;Bacon v. Bacon, 43 Wis. 197;Day v. Mertlock, 87 Wis. 577, 58 N. W. 1037. And this rule applies to all matters on which the mind of the court did act, or is presumed from the record to have acted, in the rendition of the judgment; else, there might never be an end of litigation.

The courts in this state have no common-law jurisdiction over the subject of divorces, and their authority is confined altogether to the exercise of such express and incidental powers as are conferred by the statute. Kempster v. Evans, 81 Wis. 247, 51 N. W. 327. This is also the rule in New York. Erkenbrach v. Erkenbrach, 96 N. Y. 456. Another proposition quite firmly settled by the adjudications in this state is that the revisory power of the court under this section is always open when the court has, in the first instance, granted alimony or made some allowance short of a...