Jezo v. Jezo
| Decision Date | 05 February 1963 |
| Citation | 119 N.W.2d 471,19 Wis.2d 78 |
| Parties | Martin JEZO, Respondent, v. Stella JEZO, Appellant. |
| Court | Wisconsin Supreme Court |
Wickham, Borgelt, Skogstad & Powell, Milwaukee, Reuben W. Peterson, Jr., Milwaukee, of counsel, for appellant.
Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Victor M. Harding, Milwaukee, of counsel, for respondent.
The first order from which the defendant has appealed is the order of the court dated July 2, 1962, which permitted the plaintiff to amend his complaint to assert an action for property division. Such an order is not appealable. Sec. 274.33, Stats. State Department of Public Welfare v. LeMere (1962), 17 Wis.2d 240, 116 N.W.2d 173. Upon the plaintiff's motion to review that portion of the first order which fixed attorneys' fees, we similarly conclude that such order is not appealable since it does not determine the action and prevent a judgment from which an appeal might be taken. The remainder of this opinion will consider the merits of the appeal from the second order of the court, dated July 30, 1962, which order overruled the defendant's demurrer to the second cause of action in the second amended complaint.
The statutes do not give a court which hears divorce matters cognizance over property division which is unrelated to the granting of a divorce or separation. This court has held that one spouse who has obtained a divorce without having personal jurisdiction over the other spouse may subsequently, upon obtaining such jurisdiction, bring an action for alimony. Eule v. Eule (1960), 9 Wis.2d 115, 119, 100 N.W.2d 554; Pollock v. Pollock (1956), 273 Wis. 233, 253, 77 N.W.2d 485. In this limited sense, a court which hears divorce matters has the right to entertain an independent property action between spouses.
The family code as amended by the legislature in 1959 added to the actions 'affecting marriage' one for 'property division.' The respondent urges that we determine that the amendment of secs. 247.03 and 247.055, Stats., pursuant to ch. 690, Laws of 1959, authorizes a court with divorce jurisdiction to entertain actions for property division wholly independent of either a previous or contemporaneous granting of a divorce or legal separation. Our study of this enactment persuades us that the legislature did not intend to authorize independent actions for property division under the family code but, on the contrary, was simply codifying Wisconsin case law which had authorized a court handling divorce matters to divide property where there had been a prior or concurrent decree of divorce or legal separation. If the legislature had intended so significant a change as the respondent urges, we believe that the history of the legislation would have reflected some clue of such intention. The legislative history is devoid of any support for the respondent's position, and we hold that the portion of the legislation in question was designed only to restate existing law.
While the family court was not entitled to entertain the second amended complaint under ch. 247, Stats., it does not follow that it had no jurisdiction to do so as a circuit court. The circuit court is a court of general jurisdiction and can hear and determine actions for partition of real or personal property; it can also resolve disputes as to the title of real estate. Read v. Madison (1916), 162 Wis. 94, 97, 155 N.W. 954. In State v. Fischer (1921), 175 Wis. 69, 72, 184 N.W. 774, 775, we stated the following:
'The circuit court, therefore, is a court with general jurisdiction to hear all matters, civil...
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