Hempel v. Hempel

• Decision Date: 31 May 1921
• Citation: 183 N.W. 258,174 Wis. 332
• Parties: HEMPEL v. HEMPEL.
• Court: Wisconsin Supreme Court

174 Wis. 332

183 N.W. 258

HEMPEL

v.HEMPEL.

Supreme Court of Wisconsin.

May 31, 1921.

On motion for rehearing. Motion denied.

For former opinion, see 181 N. W. 749.

PER CURIAM.

Upon respondent's motion for a rehearing in this court he now suggests, and for the first time, want of jurisdiction in this court to entertain the appeal upon the claim that the judgment in the court below annulling the marriage is one from which there is no right of appeal.

[1] If this contention be correct, mere failure on his part to raise the question earlier, or even his express or implied consent to have the matter heard, as it has been, would not give this court jurisdiction, and no other action could be properly taken than a dismissal of such an attempted appeal. Wisconsin Real Estate Co. v. Milwaukee, 151 Wis. 198, 201, 138 N. W. 642;Wildes v. Franke, 157 Wis. 189, 190, 146 N. W. 1119;Puffer v. Welch, 141 Wis. 304, 124 N. W. 406.

[2] This action is one of the several kinds of actions provided for in chapter 109, Stats., entitled “Divorce,” and jurisdiction is conferred upon the circuit court by section 2348, Stats., in providing for actions to affirm or annul a marriage, for divorce from the bond of matrimony, or from bed and board, and said section also provides:

“All such actions shall be commenced and conducted and the orders and judgments therein enforced according to the provisions of these statutes in respect to actions in all courts of record, as far as applicable, except as provided in this chapter.”

The only provision to be found in this chapter on the subject of appeal is found in section 2374, Stats., and by subsection (4) thereof provision is made for review of a judgment of divorce by appeal.

In section 2351, Stats., providing for the kind of action that was brought here, namely, for the annulment of a marriage, nothing is found relating to reviews in this court of such judgments, and the same is true as to the proceedings to affirm a marriage under section 2352.

By chapter 132 of the statutes provision is made for writs of error and appeals to this court. Section 3039, Stats., so far as material here provides as follows:

“The time within which a writ of error may be issued or an appeal taken to obtain a review by the Supreme Court of any judgment or order in any civil action or special proceeding in a court of record is limited to one year from the date of the entry of such judgment or order.”

And then follow certain exceptions and conditions not material here.

As a part of the same chapter is found a provision relating to appeals in divorce actions, and this reads as follows:

“Section 3041. The time within which an appeal may be taken from any order modifying or revising a judgment of divorce, so far as it determines the status of the parties to the action, is limited...