Zlindra v. Zlindra
| Decision Date | 25 May 1948 |
| Citation | 32 N.W.2d 656,252 Wis. 606 |
| Parties | ZLINDRA v. ZLINDRA. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Circuit Judge.
Affirmed.
This action for divorce was commenced by John Zlindra, plaintiff, against Katherine Zlindra, defendant, on October 11, 1947. There was a demurrer to the complaint, and from an order sustaining the same, entered December 30, 1947, the plaintiff appeals. Facts will be stated in the opinion.
Louis B. Aderman, of Milwaukee, for appellant.
John R. Devitt, of Milwaukee, for respondent.
The question involved upon this appeal is whether a husband may sue his wife for an absolute divorce on the ground of cruel and inhuman treatment, which is alleged in the complaint to have occurred prior to the time the defendant wife became mentally ill, more than ten years before the commencement of the divorce action. The contention of the defendant is that the husband may not maintain such an action for the reason that it is barred by the provisions of sec. 330.18(4), Stats.1945. The material facts are as follows:
The plaintiff and defendant intermarried on the 8th day of May, 1926. No issue was born of such marriage. Since 1932 the defendant has been an inmate of an asylum for the chronic insane either at the Asylum for Chronic Insane at Milwaukee County or at the Hospital for Mental Diseases of Milwaukee County. With respect to the grounds for divorce it is alleged in the complaint:
That beginning with the marriage of the parties hereto and up to the time the defendant became mentally ill (1932) the defendant had been guilty of a course of cruel and inhuman treatment of and toward the plaintiff, the same having been practicedby means of physical violence and by means other than physical violence, and that among numerous instances and particulars of such cruel and inhuman treatment are the following:
‘(a) That on one occasion in 1928 the defendant struck the plaintiff with her shoe and injured plaintiff's lip.
‘(b) That the defendant continuously argued with the plaintiff, and called the plaintiff vile and indecent names, all to plaintiff's aggravation.
‘(c) That the defendant falsely accused the plaintiff of associating with other women.
‘That as a result of the foregoing acts and conduct on the part of the defendant, all of which were without cause or provocation on the part of the plaintiff, the plaintiff has suffered great mental anguish, physical harm, and impairment of health, and because of such treatment the plaintiff feels that it is absolutely impossible for him to live with the defendant as husband and wife.'
The demurrer was upon the ground that the action was barred by the statute of limitations. Sec. 330.14 provides that the following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued: Within ten years (Sec. 330.18) an action which on and before the 28th day of February in the year one thousand eight hundred fifty-seven was cognizable by the court of chancery when no other limitation is prescribed in this chapter.
If this subsection is applicable to an action for divorce, this action was barred. Sec. 247.01 provides:
Chap. 247 makes no reference in any of its sections to the statute of limitations.
In a number of jurisdictions it has been held that the statutes limiting in general terms the time within which actions may be brought do not ordinarily apply to divorce suits. 17 Am.Jur.Sec. 173, and cases cited. The matter was considered at some length in Tufts v. Tufts, 1892, 8 Utah 142, 30 P. 309,16 L.R.A. 482. This conclusion is based in part upon Bishop, Marriage, Divorce and Separation, 2d Ed., Sec. 426. That in turn refers to the rule in the ecclesiastical courts of England.
A consideration of the statutory history of Sec. 247.01 throws some light upon this question. Sec. 8 of Chap. 79 of the Stats. of 1849 provided:
‘A divorce from the bond of matrimony, or from bed and board, may be decreed by the several circuit courts of this state sitting as a court of chancery, on suit brought in the county where the parties or one of them reside * * *.'
Ch. 127, Stats. of 1849, Sec. 24, provided:
‘Whenever there is a concurrent jurisdiction in the courts of common law, and in courts of equity of any cause of action, the provisions of this chapter, limiting a time for the commencement of a suit for such cause of action in a court of common law, shall apply to all suits hereafter to be brought for the same cause in the court of chancery.'
Sec. 25: ‘The last section shall not extend to suits over the subject matter of which a court of equity has peculiar and exclusive jurisdiction, and which subject matter is not cognizable in the courts of common law.'
In the Stats. of 1849 there is no provision limiting the time within which a cause of action for divorce may be brought.
Ch. 111, Sec. 15, Stats. of 1858 provided:
‘Actions to annul or affirm a marriage, or for a divorce, and all other matters coming within the purview of this chapter, not otherwise specially prescribed, shall be conducted in the same manner as other actions in courts; and the court shall have power to award issue, to adjudge costs, and to enforce its judgments, as in other cases.'
Chap. 138, Sec. 22, Stats.1858, provided: ‘An action for relief not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued.’ This section applied to causes of action cognizable in a court of chancery, which included divorce actions.
Sec. 22 became subdivision 4 of Sec. 4221 of the Revised Stats. of 1878. Of it the Revisors said:
The code abolishing the distinction between actions at law and suits in equity went into...
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