Kelm v. Kelm

• Decision Date: 07 April 1931
• Citation: 235 N.W. 787,204 Wis. 301
• Parties: KELM v. KELM.
• Court: Wisconsin Supreme Court

204 Wis. 301

235 N.W. 787

KELM

v.KELM.

Supreme Court of Wisconsin.

April 7, 1931.

Appeal from two orders of the Circuit Court for Dodge County relating to the vacation of a judgment in a default divorce action; C. M. Davison, Judge.

Divorce action by Ewalt H. Kelm against Vivian Whitney Kelm. Judgment of divorce by default, and from subsequent orders vacating the judgment of divorce, and denying a motion to set aside order vacating judgment, plaintiff appeals.--[By Editorial Staff.]

Appeal dismissed.

This action was begun June 6, 1929, and judgment of divorce entered therein in July, 1929.

There is a complaint setting out a cause of action of cruel and inhuman treatment, and an answer which admits formal allegations of the complaint, but denies the charge of cruel and inhuman treatment and puts the plaintiff to his proof. Thereafter the plaintiff and defendant, husband and wife, entered into the following stipulation:

“Whereas, the plaintiff and defendant have stipulated as to the property rights of the parties and the minor children in event a divorce should be granted.

It is now further stipulated that the plaintiff may proceed to trial with this action before the court at any time without further notice to the defendant.

Dated June 6, 1929.

Philip Lehner, plaintiff's attorney;

K. J. Callahan, defendant's attorney;

Ewalt H. Kelm, plaintiff;

Vivian Whitney Kelm, defendant.”

June 19, 1929, the plaintiff presented sufficient evidence to the court and was granted a divorce. The division of the property and provision for the custody of the children following the stipulation referred to in the memorandum set out above. The defendant did not appear, and the judgment was entered by default according to the agreement between the parties. Subsequently the defendant made application for an order to show cause why the judgment previously entered should not be vacated and set aside. This order to show cause was granted and made returnable before the circuit court on the first day of March, 1930, at which time the circuit court ordered that the judgment of divorce entered between plaintiff and defendant be vacated, set aside, the defendant be given permission to answer further, and ordered that the proposed answer served in connection with the order to show cause stand as the answer in the case. Plaintiff's attorney was not present at the time of the hearing on the order to show cause, and thereafter sought to have set aside the order of March 1, 1930, which vacated the judgment, and to have the judgment reinstated. This motion was denied. From both orders plaintiff appeals.Lehner & Lehner, of Princeton, for appellant.

Lloyd D. Mitchell, John F. Kluwin, and H. P. Hughes, all of Oshkosh, for respondent.

FAIRCHILD, J.

[1][2] The orders are not appealable. Section 274.33 describes the orders which may be brought to the supreme court by appeal, and neither of the orders under consideration is within that statute. They are not final orders.

Orders similar to the first one mentioned in the statement of facts have in several instances been treated on appeal as though they were appealable orders. In Donkle v. Milem, 88 Wis. 33, 56 N. W. 586, 587, for instance, Mr. Justice Pinney said: “The order opening the judgment as to the defendant Milem, and allowing him to serve an answer and defend, was an order ‘upon a summary application in an action after judgment,’ and was appealable.” The statute at that time read as it now reads. The quotation in the Milem Case omitted the word “final.” “A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment” is the whole of the subsection under consideration in the Donkle Case and here. The failure to give full significance to the use by the Legislature of the word “final” may explain the course followed in deciding that case. The appellant points out that this first order vacates a final judgment and seeks to support his argument that it also grants a new trial by reference to the case of Moran v. Moran, 172 Wis. 59, 178 N. W. 248, 249. There is no doubt that if a new trial, in the sense in which that term is used in the statute and in legal parlance, were granted the order would be one falling under subsection (3) of section 274.33 and would be appealable. The proceedings in the Moran Case come within that subsection, and they differ from those in the case now before us in the respect that no trial in the accepted sense was had in this case, while in the Moran Case issues were joined and there was a judicial examination of those issues. In the Moran Case the defendant was incompetent at the time of the trial and not able to be in court, but her attorney and guardian ad litem were present. The case came on for trial in its regular order upon the issues raised by the pleading, and after hearing the testimony and proofs submitted by the parties the court made its findings of fact and conclusions of law, and granted plaintiff judgment. Several months later, the defendant having regained her health and being able to appear in court and testify, she sought to have the judgment vacated and such other relief as might be just and equitable. Upon the showing made the court, being of the opinion that a new trial should be had, granted the motion and ordered that the judgment theretofore entered “be vacated and set aside and the action placed for trial. * * *” The plaintiff appealed from that order to this court, where it was held that “the order grants a new trial of the action, and hence is an order appealable to this...