State ex rel. Lang v. Civil Court of Milwaukee Cnty.

• Decision Date: 21 June 1938
• Citation: State ex rel. Lang v. Civil Court of Milwaukee Cnty., 228 Wis. 411, 280 N.W. 347 (Wis. 1938)
• Parties: STATE ex rel. LANG v. CIVIL COURT OF MILWAUKEE COUNTY et al.
• Court: Wisconsin Supreme Court

228 Wis. 411

280 N.W. 347

STATE ex rel. LANG

v.CIVIL COURT OF MILWAUKEE COUNTY et al.

Supreme Court of Wisconsin.

June 21, 1938.

Original proceeding for writ of prohibition by the State of Wisconsin, on the relation of Harry Lang, against the Civil Court of Milwaukee County and others, to compel the court to desist from further proceedings in a bastardy action against the relator, and for a temporary writ requiring the Honorable Carl Runge, as judge of the court, to show cause why the writ should not be issued.-[By Editorial Staff.]

Writ issued as prayed.

Petition for a writ of prohibition commanding the Civil Court of Milwaukee County to desist from further proceedings in a bastardy action entitled “State ex rel. Helen Bunzel, plaintiff, v. Harry Lang, defendant”; and for a temporary writ requiring the Hon. Carl Runge, as a judge of that court, to show cause why the writ should not be issued. Upon the granting of leave to commence this proceeding as an original action in this court, and the issuance of an alternative writ, the respondents, Judge Runge and the complaining witness, Helen Bunzel, moved to quash the writ.Brennan, Lucas & McDonough, of Milwaukee, for petitioner.

Orland S. Loomis, Atty. Gen., and Herbert J. Steffes, Dist. Atty., and Gene L. Green, Asst. Dist. Atty., both of Milwaukee, for defendants.

FRITZ, Justice.

[1] The purpose of the writ sought herein is to enjoin the Civil Court from proceeding further in the bastardy action mentioned above, pursuant to an order made by Judge Runge on December 23, 1936, by which a judgment entered October 10, 1934, was declared void and vacated, and a new hearing granted. Inasmuch as the respondents' motion to quash is equivalent to a general demurrer (State ex rel. Allis v. Wiesner, 187 Wis. 384, 204 N.W. 589), the following facts alleged in the petition, or in effect incorporated therein by statements in exhibits made a part thereof, must be deemed admitted. Prior to and on October 10, 1934, Harry Lang, the petitioner herein, appeared in person and by his attorney, Martin J. Brennan, in the bastardy action before Judge Runge, and Helen Bunzel, the complaining witness, appeared therein by Harold Lenicheck, an Assistant District Attorney, and N. Paley Phillips, her private counsel; and Lang through his attorney and the complaining witness through the Assistant District Attorney entered into a stipulation in open court, with the court's consent and approval, pursuant to which findings and judgment were entered in which it was recited and provided (so far as here material):-

“The issues in this action having been brought to trial in their regular order ***; the plaintiff appearing by Harold A. Lenicheck, Assistant District Attorney, the defendant in person and by Martin J. Brennan, his attorney; proof having been submitted therein *** and the defendant having been found guilty as charged *** and the court being fully advised in the premises, it is found and adjudged” that the complainant on September 10, 1934, gave birth to an illegitimate child of which Lang is the father; that the amount due for lying-in expenses and the support of the child is $87.92, which Lang is adjudged to pay to complainant; that he shall also pay $10 per month, beginning November 1, 1934, until the child is sixteen years of age, for its support and maintenance-“provided that said defendant may satisfy said judgment in full by paying said costs, disbursements, lying-in expenses, and in lieu of the installment payments hereinbefore provided, the lump sum” of $500 “(at any time within sixty days from the date hereof) (or) in monthly installments of Fifty ($50.00) Dollars each” beginning November 1, 1934, and “in the event of default in the payment of any monthly installments, the entire lump sum shall become due forthwith; ***.”

In addition, the following facts alleged in the petition must be deemed admitted: In August 1935, the complaining witness, through her private counsel, moved to modify the judgment by increasing the weekly payments or the lump sum settlement; and prior to any decision on that motion the Assistant District Attorney, in April 1936, also made a motion to that effect. On December 23, 1936, Judge Runge ordered the judgment vacated and a hearing and further proceedings in the action. Lang had paid the lying-in expenses and the $500 under the judgment by September 1935.

[2][3][4][5][6] Lang's principal contention herein is that the Civil Court was without jurisdiction to proceed in accordance with its order of December 23, 1936, vacating the judgment entered October 10, 1934, for the reason that the order was void because it was not made within one year,-as required under sec. 269.46, Stats.,-after the moving parties had notice of the entry of judgment on October 10, 1934. That contention must be sustained unless, as the respondents contend, the judgment was void and could therefore be expunged at any time under the rule that “A judgment which is a nullity may be so expunged on motion at any time. Sackett v. Price County, 130 Wis. 637, 110 N.W. 821.” Godfrey v. Wright, 151 Wis. 372, 374, 139 N.W. 193, 194;Spencer v. Osberg, 152 Wis. 399, 140 N.W. 67;Fischbeck v. Mielenz, 162 Wis. 12, 154 N.W. 701. In that connection the respondents claim that the judgment was void for lack of jurisdiction in the court to render it, because (1) it was not based on proof or a stipulation, as required under sec. 166.07, Stats., in a statutory bastardy action under Chapter 166, Stats.; and because (2) the provisions in the judgment are indefinite and incompatible, and in disregard of the form and legal effect prescribed in sec. 166.11 (1), Stats. It is true, as respondents argue, that as the proceeding is statutory in its origin, the legislature was authorized to and did fix the issues and the manner in which t...