Miller v. Currie

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: ROSENBERRY
• Citation: 208 Wis. 199,242 N.W. 570
• Parties: MILLER v. CURRIE ET AL.
• Decision Date: 10 May 1932

208 Wis. 199
242 N.W. 570

MILLER
v.
CURRIE ET AL.

Supreme Court of Wisconsin.

May 10, 1932.

Appeal from an order of the Circuit Court for Columbia County; C. F. Van Pelt, Circuit Judge.

Action for declaratory relief by Jennie Miller against Lucy Currie and others. From an order sustaining defendants' demurrer to plaintiff's amended complaint, plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

This action was begun July 23, 1931, and an order sustaining defendants' demurrer to plaintiff's amended complaint was entered December 9, 1931.

The complaint alleges that a common-law marriage was entered into between James Currie and Tena Hickethier, residents of Wisconsin, prior to August 22, 1876, and that the relation between the parties to said common-law marriage was never later terminated until the death of James Currie; that the plaintiff was born August 22, 1876, and that she was and is the lawful child, the only lawful issue of said marriage and of the said James Currie; that James Currie in his lifetime, in writing and otherwise, repeatedly recognized and acknowledged the existence of said marriage, his lawful paternity of the plaintiff, and that she was the lawful issue of said marriage.

It is further alleged that James Currie contracted a bigamous marriage with the defendant Lucy Currie, and that the defendants William Currie and Stephen Currie are the illegitimate issue of said unlawful marriage; that James Currie, before the plaintiff attained the age of twenty-one years, left the state of Wisconsin, and at all times thereafter was a nonresident thereof.

It is further alleged that, since the unlawful marriage of James Currie to the defendant Lucy Currie, the said Lucy Currie has been a nonresident of the state of Wisconsin, and that each of the other codefendants are nonresidents.

It is further alleged that Lucy Currie did not, until shortly prior to the commencement of this action, question plaintiff's status as a lawful child of James Currie.

It is further alleged: “As plaintiff is informed and believes, defendants now give out and claim that she is not the issue of any lawful marriage by said James Currie to her mother, was never acknowledged by him as his child, and assert that defendant Lucy Currie is the lawful widow, and her codefendants his sole and only lawful children.”

Plaintiff prays that she have judgment for declaratory relief, adjudging that she is the lawful child of James Currie, deceased, and such other and further relief as may be just and proper.

To this the defendants demurred upon the grounds: (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that the court has no jurisdiction of the subject of the action; and (3) that the action was not commenced within the time limited by law, referring to sections 330.18, 330.19, and 330.26, Wis. Stats.

The plaintiff appeals from the order sustaining the demurrer.

[242 N.W. 570]

Grady, Farnsworth & Walker, of Portage, for appellant.

Diver & Populorum, of Waukegan, Ill., Ralph F. Potter, of Chicago, Ill., and Rogers & Owens, of Portage, for respondents.

ROSENBERRY, C. J.

This action is brought under the Uniform Declaratory Judgments Act, being section 269.56, Wis. Stats. The material part is printed in the margin. ¹

[242 N.W. 571]

[1] Numerous contentions were made in the argument and in briefs of counsel here, some of which at least require us to assume the existence of facts not alleged in the complaint and are questions which relate to the exercise of discretion by the court as to whether or not jurisdiction of the action should be entertained. By the very words of the statute the discretion given to the court is not a discretion to entertain the action, but to enter or decline to enter the judgment or decree. The discretion conferred by subsection (6) may therefore be exercised only upon the record as it exists when the entry of a judgment would be appropriate.

[2] It is further urged that the statute does not confer jurisdiction or power upon the court to act under a state of facts such as disclosed by the complaint in this case because no property right is involved. Declaratory relief is a creation of the statute and was unknown to the common law. Such jurisdiction as the court has in matters of this kind, therefore, it derives from the statute and its jurisdiction is in that regard limited by the statute which confers the...