State ex rel. Wall v. Sovinski

• Decision Date: 09 April 1940
• Citation: 234 Wis. 336,291 N.W. 344
• Parties: STATE ex rel. WALL v. SOVINSKI.
• Court: Wisconsin Supreme Court

234 Wis. 336

291 N.W. 344

STATE ex rel. WALL

v.SOVINSKI.

Supreme Court of Wisconsin.

April 9, 1940.

Appeal from an order of the Civil Court of Milwaukee County; Carl Runge, Judge.

Affirmed.

The order assailed was made May 15, 19,39 in an illegitimacy action, commenced on March 20, 1933. On March 20, 1933, Julia Wall, a female, hereinafter called the plaintiff, who had theretofore been delivered of an illegitimate child, and the defendant, Leo Sovinski, pursuant to the provisions of sec. 166.07, Stats., appeared in the civil court of Milwaukee county, submitted to its jurisdiction and entered into a written agreement which provided: “It is agreed that the complainant Julia Wall on the 3rd day of March, 1931, gave birth to a male child, since named Robert Lee, that the same is now alive and being cared for by the mother; that said complainant is not now and has never been married, and that said defendant Leo Sovinski admits that he is the father of said illegitimate child delivered of said complainant on the date aforesaid. Parties contemplate marriage, therefore upon agreement of both parties no provision for the support of said child is made herein, & matter of said provision is adjourned until 6 months after date hereof.”

On the same day and upon motion of an assistant district attorney of Milwaukee county, it was found and adjudged:

“1. That the complainant Julia Wall on the 3rd day of March, 1931, gave birth to a male child, since named Robert Lee; that the same is now alive and being cared for by the mother; that said complainant is not now and has never been married; and that said defendant Leo A. Sovinski is the father of said illegitimate child delivered of said complainant on the date aforesaid. Parties contemplate marriage therefore upon agreement of both parties no provision for the support of said child is made herein & matter of said provision is adjourned until 6 month(s) after date hereof.

“Dated this 20th day of March, 1933.

“By the court,

“A. J. Hedding,

“Judge of the civil court of Milwaukee county, Wisconsin.”

Thereafter, on May 27, 1933, upon the affidavit of the plaintiff, in which it was recited that she was unable to provide for the said child and that it would be necessary for her to receive some aid, an order was issued by Joseph C. Cordes, civil court judge, which required the defendant to show cause why he should not pay the sum of $3 per week for the support and maintenance of said child. Upon the return day, the plaintiff appeared by the assistant district attorney and the defendant appeared by his attorney. The case was transferred to that branch of the civil court over which Judge Jennings presided. Thereafter, the parties appeared in Judge Jennings' court. The plaintiff then moved to amend her affidavit and the order by inserting therein $5 instead of $3 per week. The plaintiff and the defendant both testified. The court thereupon made and entered the following order:

“It is ordered that the defendant, Leo Sovinski, pay the sum of fourteen ($14) dollars per month on the first day of each month, beginning with the 1st day of July, 1933 until the child shall arrive at the age of sixteen years, as and for the future support and maintenance of said child, and that all of such payments for future support be made to the superintendent of the poor of Milwaukee county, and by him to the complainant, Julia Wall, in installments of $14 per month, as and for the child's support.

“Dated this 5th day of June, A. D., 1933.

“By the court,

“F. Jennings

“Judge.”

On August 27, 1935, upon the affidavit of the plaintiff and on motion of the assistant district attorney, Civil Court Judge Cummings ordered the defendant to show cause before him on September 7, 1935, why the allowance made for the support of the child of the parties should not be increased in accordance with the statute in such case made and provided and why the defendant should not be ordered to pay the same as and for the support of the child. Upon the return day, the motion was continued to September 14, 1935. Upon the adjourned day, the motion was heard by Carl Runge, civil court judge. The defendant offered to make a lump sum settlement of $400 to be paid at the rate of $25 each month. The court approved of the settlement and directed that an order be drawn accordingly. No order was ever drawn. The defendant, however, complied with the directions of the court and fully paid the $400. On November 30, 1938, Civil Court Judge Gausewitz issued an order requiring the defendant to show cause why the order dated September 14, 1935, should not be vacated and set aside and why the order entered on June 5, 1933, should not be reinstated. On December 2, 1938, the return day, the motion was adjourned to December 16, 1938. Several other adjournments were had. The matter finally came on for hearing before Judge Runge on January 6, 1939. The defendant moved that judgment be entered in accordance with the lump sum settlement made on September 14, 1935, nunc pro tunc. On May 15, 1939, Judge Runge entered an order in which he found that the order theretofore made on September 14, 1935, was without authority or effect for the reason that the court was without jurisdiction to make it; that the order made on June 3, 1933, was in full force and effect and that the order of September 14, 1935 “be and hereby is vacated and set aside, and that the sum of $400 paid by defendant as a settlement in full be applied as payments made in accordance with the said order of June 3, 1933.”

From that order, and the whole thereof, the defendant appealed.

Max P. Kufalk, of Milwaukee (Erwin F. Fredrich, of Milwaukee, of counsel), for appellant.

John E. Martin, Atty. Gen., and Herbert J. Steffes, Dist. Atty., Gene L. Green, Asst. Dist Atty., and John L. Newman, all of Milwaukee, for respondent.

NELSON, Justice.

The sole question for decision is whether the civil court had authority to vacate and set aside the order of September 14, 1935, which approved the $400 lump sum settlement.

All of the proceedings purportedly were had in pursuance of the provisions of ch. 166, Stats.

[1]Assuming, but not deciding, that the original judgment entered March 20, 1933, was valid and that it was amended by the order of June 5, 1933 (which judgment and order are not before us), we reach the conclusion from the record before us that the order of September 14, 1935, entered by Judge Runge, was null and void because he had no jurisdiction to make it. In vacating and setting aside the order of September 14, 1935, the trial court concluded that the judgment, entered on March 20, 1933, as amended by the order of June 5, 1933, was valid, and that since it provided for the payment of a specified monthly sum until the child was sixteen years of age, the court had no continuing jurisdiction to modify that judgment and to adjudge or order a lump sum settlement. In so concluding, the civil court in our opinion was right. Sec. 166.11, Stats., clearly provides what a judgment in an illegitimacy proceeding...