Hirchert v. Hirchert

• Decision Date: 12 October 1943
• Citation: 243 Wis. 519,11 N.W.2d 157
• Parties: HIRCHERT v. HIRCHERT.
• Court: Wisconsin Supreme Court

243 Wis. 519

11 N.W.2d 157

HIRCHERT

v.HIRCHERT.

Supreme Court of Wisconsin.

Oct. 12, 1943.

Appeal from a judgment and order of the County Court of Ozaukee County; Peter M. Huiras, Judge.

Affirmed. Motion to dismiss appeal denied.

Action by John Hirchert against Katherine Hirchert for a divorce a vinculo. From a judgment for the plaintiff and an order denying motions of revival and to vacate the judgment the defendant appeals. The facts involved so far as material to the points decided are stated in the opinion.

Buchen, Currie, Federer & Grote, of Sheboygan, for appellant.

Albert W. Grady and Charles J. Kunny, both of Port Washington (Martin R. Paulsen, of Milwaukee, of counsel), for respondent.

FOWLER, Justice.

A divorce to the plaintiff husband a vinculo was announced from the bench at the close of the taking of proofs in support of his complaint which prayed such judgment. Two days later the husband died. The judgment had not then been drafted but was later drafted and entered of record nunc pro tunc as of date of the announcement, March 21, 1942. The property rights had been stipulated in writing and signed by both parties and the judgment announced and later entered carried out the stipulation.

All dates herein mentioned refer to 1942. The record shows that the complaint was verified on March 19. On March 20 the defendant signed an admission of service endorsed on the complaint; verified an answer; signed an entry of appearance and waiver of notice of application for judgment, and lapse of the statutory time after service allowed the defendant to answer or otherwise plead and consented to an immediate hearing on application for judgment; and signed a stipulation agreeing that in the event a judgment of divorce were granted “in the action that a complete and final settlement of the real and personal property of the plaintiff and of the parties, and in lieu of alimony” might be as therein stated. This stipulation contained seventeen items. On March 21 the court heard the evidence in support of the complaint and judgment was orally announced by the trial judge in open court. The defendant was not present when the testimony was taken or the judgment announced. The divorce counsel was present and recommended the granting of a divorce a vinculo. The answer, stipulation and waiver were also signed by Schanen & Schanen as defendant's attorneys. Mr. Wm. F. Schanen cross-examined the plaintiff at the hearing and stated to the court that the residence of the parties within the state for the statutory period of residence necessary as condition precedent to granting a divorce was admitted.

The defendant had recently had a major abdominal operation. Her grown son by a previous marriage had participated actively in the negotiations preceding the signing of the stipulation which continued two weeks. The property of the parties was held in joint tenancy. In view of the wife's operation it appeared at the time of the negotiations of the property settlement that the husband although the older was likely to survive the wife. These negotiations were entered into because of a letter to the plaintiff dictated by the defendant written at the hospital March 4, saying that she would not live with him, demanding that he leave the home, and requesting a division of their property.

We will first consider the motion to dismiss the appeal. The grounds laid for the motion are three: (1) The court will dismiss an appeal where the only relief sought is reversal of a judgment for granting a divorce and the defeated party died after the granting of it. (2) The action was not revived in the court below. (3) The notice of appeal was not served on the administrator of plaintiff.

(1) Downer v. Howard, 44 Wis. 82, is cited in support of (1). Although there is much said in the opinion from which it would seem to follow that this court would not review an appeal by the defendant in a divorce case in which the plaintiff was granted a divorce and died after entry of the judgment where the only question involved is whether the judgment should be reversed, because death has done all that the judgment did, the judgment there involved denied a divorce to the appealing party, and the other party died after the appeal was taken, and the opinion states, 44 Wis. at page 87, “We do not intend to decide what effect the death of either party after appeal brought from a judgment granting a divorce, would have upon the case, or upon the power of this court to review the judgment in such case.” In that case the court affirmed the judgment because suit money was awarded the plaintiff wife, and her administrator was entitled to defend to protect this award. We can not regard the case as authority for dismissal for want of jurisdiction. The claim here made that the judgment of divorce deprived the defendant of social security payments as the widow of plaintiff, and she is for that reason entitled to a review of the record by this court is discussed in considering the case on the merits.

(2) As to (2) we will only say that we held in Bond v. Breeding, 234 Wis. 14, 290 N.W. 185, 187, to the contrary. It was there held that the revivor statutes do not apply “to actions in circuit court after judgment.”

(3) The point here is that as the notice of appeal was not served on the administrator the appeal must be dismissed under the rule of Stevens v. Jacobs, 226 Wis. 198, 275 N.W. 555,276 N.W. 628. We by-pass that contention because it is conceded-and it so appears from the record-that service of the notice of appeal on respondent Hirchert as an individual was properly admitted. The service on him being good this cured the lack of service upon him as administrator because the service upon him individually answered every purpose of service upon him in his capacity as administrator.

The purpose of serving a notice of appeal is to give the person served an opportunity to defend. The one valid service on Hirchert gave him opportunity to defend in both capacities. The Albert W. Grady and Chas. J. Kunny who signed the acceptance of service for the administrator and Albert W. Grady who signed the acceptance for Hirchert individually both sign the brief in this court. Hirchert is the only heir of the deceased plaintiff as he is described in the petition to vacate the judgment as “the sole heir at law of plaintiff.” His interest as administrator is precisely the same as his interest individually. Having been made a party to the appeal as “the heir” of the plaintiff, there was no need to make him a party as administrator. He has had the opportunity to do, and has done everything as administrator that he would have done or could have done had he been personally served as administrator. It is certain that no detriment or prejudice can result to Hirchert in either capacity by denying the motion to dismiss the appeal.

The defendant appeals (1) from an order denying a motion to revive the action; (2) from an order denying a motion to vacate the judgment incorporated with the motion for revival; and (3) from the judgment.

(1) As to the motion above stated there is no occasion to discuss it, for unless the motion to vacate the judgment were granted there would be no possibility of reviving or continuing the action in the name of anybody. We are of opinion that the trial court was without jurisdiction to vacate the judgment for the reason below stated.

(2) Sec. 247.37, Stats.1941, forbids the vacation of a judgment of divorce after the death of one of the parties so far as it affects the marriage status. The portions of the statute here material are quoted in the margin.¹

Defendant's counsel contend that this statute does not apply where relief from a judgment is moved for under sec. 269.46, Stats., as the instant motion is conceived as being, on the ground of “mistake, inadvertence, surprise or excusable neglect.” But we see no escape from the language of sec. 247.37 (1) and (2) quoted in the margin. The action for divorce is a statutory action. The court can grant only such relief as the statute prescribes. Hopkins v. Hopkins, 39 Wis. 167;Szumski v. Szumski, 223 Wis. 500, 270 N.W. 926. The effect of the judgment is as the statute prescribes. The court has no power to grant relief contrary to the prescribed effect of the judgment. Authorities without end can be cited as to the power of courts to modify divorce judgments, among them several decisions of this court, but none can be cited to the point that a court can vacate such a judgment in the face of a statute expressly forbidding it. As the fact here exists that forbids under the statute vacation of the judgment,-viz., the death of a party,-an order of the court purporting to vacate it would be void. The cases of this court that hold that a court of equity has power to vacate a divorce judgment were decided before the prohibition of sec. 247.37 that it could not be done after the death of a party was enacted.

Sec. 247.37, Stats.1941, is headed “Effect of judgment of divorce from bonds.” This heading indicates that the purpose of the section is to declare the effect of a judgment of divorce upon the marriage bond. Subsec. (1) expressly declares the effect for one year “so far as it affects the status of the parties.” It expressly provides for an appeal within the year and then expressly provides that if either party dies within the year the judgment “unless vacated (both parties being alive) or reversed (on appeal), shall be deemed to have entirely severed the marriage relation (dissolved the marriage bond) immediately before such death.” Thus the death of the instant plaintiff ipso facto severed the marriage relation and put it beyond the power of the courts to restore it. The words above inserted in parenthesis “both parties being alive” are not in subsec. (1) but the power to vacate is restricted to the parenthetical condition by the language of subsec. (2) providing that the court may vacate the judgment on...