Voelz v. Voelz

• Decision Date: 23 October 1894
• Citation: 88 Wis. 461,60 N.W. 707
• Parties: VOELZ ET AL. v. VOELZ ET AL.
• Court: Wisconsin Supreme Court

88 Wis. 461

60 N.W. 707

VOELZ ET AL.

v.VOELZ ET AL.

Supreme Court of Wisconsin.

Oct. 23, 1894.

Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.

Proceeding by Herman Voelz and another against Louis Voelz and others to partition real estate. Judgment was rendered for a sale of the lands, including that held by defendant Caroline Voelz as a homestead. From an order denying her petition for a stay of proceedings, Caroline Voelz and Louis Voelz appeal. Reversed.

Newman, J., dissenting.

C. A. Koeffler, Jr., for appellants.

Carney, Clasen & Walsh, for respondents.

ORTON, C. J.

This is a proceeding to partition certain real estate lying in the county of Waukesha, in this state, among the heirs at law of William Voelz, deceased, and Caroline Voelz, the widow of the said William Voelz, deceased, who was in possession of a portion of said lands, as her homestead. The situation of said real estate having been ascertained by the report of a referee, with the view of ascertaining whether the same should be divided between said parties, or sold, and the proceeds thereof distributed among the same, judgment was entered for the sale of the same, on default of the defendants. By said judgment the homestead right of the said Caroline Voelz was also ordered to be sold, and “that the purchaser should have said lands discharged from all claim by virtue of such homestead and the dower right of said Caroline Voelz.” Thereupon the said Caroline Voelz and Louis Voelz petitioned the court to stay all further proceedings in said partition suit until the court shall determine whether it had any jurisdiction to enter said order, and, if it should determine that it had not, to dismiss said proceedings. The court denied said petition, and revoked the order to show cause based thereon, and dissolved the restraining order, with costs, and this appeal is from said order.

It may be observed that this judgment is not to sell the interest or title of the heirs in remainder or reversion after the homestead right of the widow, Caroline Voelz, in the real estate has expired, so that the question whether any such estate is subject to partition under the statute is not material. The judgment is that the land in which the said Caroline has a homestead right shall be sold, and the purchaser hold the same “discharged from all claim by virtue of such homestead and dower rights.” On such sale, the widow, the said Caroline, is divested of all her homestead right in said lands, or any part thereof. The learned counsel of the appellants contend that the court had no juris diction to subject to either partition or sale the homestead of the said widow, Caroline Voelz, or to divest her thereby of her title to the same. This contention is unquestionably correct.

1. The statute confers no such jurisdiction on the courts. Section 3101, Rev. St., provides as follows: “All persons holding lands as joint tenants or tenants in common, may have partition thereof by civil action, in the manner provided in this chapter.” There is nothing more self-evident than that the homestead of the widow is not held as a joint tenancy or tenancy in common. Her right, as well as possession, are exclusive of all others.

2. This is also shown by the nature of the homestead right. It consists of 40 acres of agricultural land, and the dwelling house thereon, owned and occupied by any resident of the state, and selected by him as such. Rev. St. § 2983. “The homestead means a place of residence, implying occupancy and possession.” Upham v. Bank, 15 Wis. 449. “When the owner of any homestead shall die, not having lawfully devised the same, such homestead shall descend,” etc., “if he shall leave a widow and issue, to the widow during her widowhood, and upon her marriage or death to his heirs,” etc. Section 2271, subd. 2. It is a good answer to an action for partition that the widow holds the exclusive title for life or during widowhood. Hannan v. Oxley, 23 Wis. 519.

3. There is concurrent jurisdiction in the county court for the partition of estates to the heirs, and partition of the homestead of the widow is expressly excluded. Section 3954, Rev. St., provides “that when the term of a widow entitled to a homestead right, or dower or other life estate in the lands of a deceased person, shall expire, the reversion may be assigned to the persons entitled to the same,” etc. “An action for partition can only be maintained by one having the actual or constructive possession of the premises, or the right to the same.” Morse v. Stockman, 65 Wis. 36, 26 N. W. 176. Our laws have thrown around the homestead every necessary protection for the humane and beneficent use for which it was designed, and no exception by which the widow could be divested of it is found in the statute. It would require positive legislation to subject the widow's homestead to the uncertain tenure of the capricious action of the heirs, whenever they might wish to have a partition or sale of the lands of the estate. There is not only no such provision, but, as we have seen, the statutes and the nature of the homestead right preclude any such interference with it. Where the widow's homestead is provided for in other states, it is held not to be subject to partition. Keyes v. Hill, 30 Vt. 767;Doane v. Doane, 33 Vt. 652;Hoffman v. Neuhaus, 30 Tex. 636;Nicholas v. Purcyell, 21 Iowa, 265;Dodds v. Dodds, 26 Iowa, 311. It is useless to speculate as to what kind of an estate the widow's “homestead right,” as it is called in the statute, is, or as to how it should be classified. It is sufficient that it is accompanied by actual and exclusive possession, that cannot be disturbed so long as she lives unmarried. The court, therefore, had no jurisdiction over it in this case.

The order of the circuit court is reversed, and the cause remanded, with direction to set aside or modify the judgment in the main case, in accordance with this opinion.

NEWMAN, J. (dissenting).

It is believed that the decision of the court in this case is out of harmony with the whole current of its decisions on the subject of jurisdiction. The question to be adjudicated is whether the judgment and order of sale made by the circuit court, and which are assailed by this motion, were made in a case where the court was without jurisdiction to make them, and are void; or whether they were made in a case within the jurisdiction of the court, and, if irregular, are simply erroneous. If they are void, they can be vacated on this motion. If they are erroneous only, they cannot be vacated, or modified even, on this motion, but are valid until reversed upon appeal. The question turns upon the point whether they were made in a matter which was within the jurisdiction of the circuit court. Jurisdiction is defined to be “the power to hear and determine causes.” It is defined by the present chief justice of this court in Monroe v. City of Ft. Howard, 50 Wis. 228, 6 N. W. 803, to be “the power to pronounce judgment.” It is nowhere defined to be “the power to pronounce the right judgment.” It is broader than that. It includes also the power to pronounce a wrong judgment. Jurisdiction of the person is obtained by the service of process. Jurisdiction of the subject-matter is power to adjudicate concerning the general question involved. Folger, J., in Hunt v. Hunt, 72 N. Y. 217-229. Jurisdiction is generally understood to be complete where the process has been properly served, and the court has jurisdiction of the subject-matter.

The plaintiffs brought an action for the partition of certain premises. The defendant Caroline Voelz, their mother, the widow of their deceased father, had an estate of homestead in a part of such premises. The complaint showed her interest, and asked that it be included in the judgment for partition and order of sale. She was made a party defendant, and the summons was served upon her. She made no defense. The jurisdictional question involved here is this: Had the circuit court power to determine whether or not that homestead estate was subject to be partitioned? Certainly, the court had jurisdiction of the defendant by due service of the process. Equally it had the power to adjudicate concerning the general question involved; that is, what estates are subject to be partitioned. The question of jurisdiction, in a particular case, turns upon the answer to the question, had the circuit court power to “hear and determine,” “to pronounce judgment” on the question whether the plaintiff has a right to the relief which he asks? “Jurisdiction does not relate to the right of the parties as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced, nor the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity, either in the plaintiff or in any one else. The case we are considering illustrates the distinction I am endeavoring to point out as well as any supposed case would. It presents these questions: Have the plaintiffsshown any right to the relief which they seek? And has the court authority to determine whether or not they have shown such a right? A wrong determination of the question first stated is...