Smith v. Smith
| Decision Date | 07 June 1949 |
| Citation | 38 N.W.2d 12,255 Wis. 96 |
| Parties | SMITH v. SMITH. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.
Action by Angeline Smith against Cleo B. Smith for division of the parties' property acquired during their illegal common-law marriage. From an order overruling a demurrer to an amended complaint, defendant appeals.-[By Editorial Staff.]
Reversed with instructions.
FRITZ, J., dissenting.Action for division of property of parties to an illegal common law marriage. Defendant demurred to the amended complaint, and from an order overruling the demurrer, defendant appeals.
The amended complaint alleges in substance that on October 8, 1937 plaintiff and defendant, believing that common law marriages were still valid and legal in Wisconsin, entered into an agreement to contract a common law marriage; that they lived together as man and wife from that date to a time shortly before the commencement of this action, and held themselves out to the public as husband and wife. The amended complaint further alleges that when plaintiff learned that common law marriages were not recognized in Wisconsin she demanded that defendant marry her legally, and when he refused she left him.
With respect to property the complaint sets out: That in 1937 plaintiff was a manicurist earning $20 to $30 per week, and that the defendant was a barber earning approximately $30 per week; that for the first five years of their relationship most of the joint earnings were required to pay living expenses; that in 1941 the earnings of the parties were invested in a tavern located at 1233 West State Street, Milwaukee, Wisconsin, which has ever since been licensed in the name of and operated by the defendant; that in 1943 the parties invested additional funds in a restaurant at 1237 West State Street in the name of defendant; that plaintiff then ceased her employment as a manicurist and worked as cook and waitress in the restaurant for a year and a half; that the restaurant and equipment were then leased to a third party from whom defendant received $95 per month rental; that in 1943 the parties invested other funds in two pieces of real estate, one on West Highland Avenue and one on North 13th Street; that the Highland Avenue property was sold and the proceeds used to pay certain liens on the 13th Street property which is free of lien and title to which is held in the names of both.
There are allegations that the tavern business has a value of $10,000, the 13th Street real estate a value of $14,000, that the defendant has a mortgage on a third party's real estate for $4,000, a bank account containing an amount unknown to plaintiff, and household furniture of the value of $500.
The prayer of the complaint is for an equitable division of the property and for appointment of a receiver to conserve the property and collect the income therefrom until trial can be had.
M. W. Hills, Milwaukee, for appellant.
Edward C. Plantz, John J. Devos, Milwaukee, for respondent.
The appellant contends that this case is controlled by the decision in Brill v. Salzwedel, 1940, 235 Wis. 551, 558, 292 N.W. 908, 911. There the plaintiff sought an accounting from the defendant under a partnership contract whereby it was agreed that the defendant would operate a tavern in his name, both parties making the necessary original investment. The court said:
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Respondent relies upon the case of Estate of Fox, 1922, 178 Wis. 369, 371, 190 N.W. 90, 91, 31 A.L.R. 420. In that case the parties entered into a civil contract of marriage when the man had only a judgment of divorce from bed and board from...
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