Kempster v. Evans

• Decision Date: 02 February 1892
• Parties: KEMPSTER v. EVANS ET AL.
• Court: Wisconsin Supreme Court

81 Wis. 247

51 N.W. 327

KEMPSTER

v.EVANS ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1892.

Appeal from Winnebago county court; C. D. CLEVELAND, Judge.

Petition by Miriam P. Kempster against Walter Kempster, praying that an installment of alimony, which defendant deposited with the clerk of the court pending the determination of who was entitled thereto, be paid to petitioner. O. J. Evans and another intervened, and by answer claimed the amount by assignment from petitioner. The prayer of the petition was granted, and the interveners appeal. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that June 19, 1885, a judgment of divorce was rendered in favor of the plaintiff, and against Walter Kempster, wherein and whereby the said Walter Kempster was adjudged to pay to the plaintiff out of his estate, as alimony, for her personal support and maintenance, the sum of $1,000, annually, in quarterly installments, one-fourth in advance on the 19th days of June, September, December, and March of each year, during her natural life, if she remained unmarried; that in the event of her marriage such alimony would terminate; that said judgment for alimony was therein declared to be and stand as a final division of property between the said plaintiff and the said Walter Kempster; that March 26, 1891, upon the petition of the plaintiff stating, in effect, the facts mentioned, and that March 21, 1891, the said Walter Kempster paid into court the sum of $250, being for the quarterly payment of alimony for the quarter ending June 19, 1891, and that said Walter Kempster, at the time of depositing said money with the clerk of the court, notified him that said Evans, of Minneapolis, claimed said money, and that one Folsom, of the same pace, claimed the control thereof as alimony, she obtained an order upon said Evans and Folsom to show cause why said $250 should not be paid to her, which petition and order were duly served upon them; that said Evans thereupon answered said petition, and, among other things, therein stated that March 1, 1890, he leased to the plaintiff a certain store in Minneapolis from March 1, 1890, to March 1, 1893, for the rent of $110 per month, and that said lessee therein covenanted to pay said rent monthly in advance; that, to secure the payment of said lease, the said plaintiff, at the same time, sold and assigned to said Evans all her right, title, and interest to said alimony, as a partial payment of rent for the full period of said lease; that thereupon the plaintiff entered into the possession of said premises, and actually occupied the same for a store and dwelling until December 1, 1890, at which time she abandoned the same; that there was due and payable from the plaintiff to said Evans, and on account of said lease, the sum of $540; that said Walter Kempster had due notice of said assignment of said judgment of alimony to said Evans, and prayed that said money so deposited with the clerk be paid to him. To that answer the plaintiff demurred, on the ground that the same did not state facts sufficient to constitute a defense to said petition. From an order sustaining that demurrer, the said Evans brings this appeal.F. C. Stewart, for appellant.

Weisbrod, Thompson & Harshaw and J. H. Davidson, for respondent.

CASSODAY, J., ( after stating the facts.)

It is a general principle of the law of divorce in this country that courts only possess such powers as are conferred by statutes. Hopkins v. Hopkins, 39 Wis. 171;Bacon v. Bacon, 43 Wis. 202;Cook v. Cook, 56 Wis. 203, 14 N. W. Rep. 33, 433;Clarke v. Burke, 65 Wis. 361, 27 N. W. Rep. 22;Blake v. Blake, 75 Wis. 343, 43 N. W. Rep. 144. The statute authorizes the court, in the first instance, to adjudge to the wife alimony out of her husband's “estate,” or to “finally divide and distribute the estate, both real and personal, of the husband, and so much of the estate of the wife as shall have been derived from the husband, between the parties; and divest and transfer the title of any thereof accordingly, having always due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case,” as therein indicated. Section 2364, Rev. St. Of course, where there is a final division in the first instance, there is no good ground for a subsequent modification of the judgment; and hence the statute declares that, “when a final division of the property shall have been made under the provisions” of the section cited, “no other provisions shall be thereafter made for the wife.” Section 2369, Rev. St. “But where, in the first instance, alimony is adjudged to the wife, whether payable in limited amounts, ‘from time to time, or in gross, the court is expressly authorized, from time to time, on the petition of either of the parties,’ not only to ‘revise and alter such judgment respecting the amount of such alimony or allowance,...