Summary
holding that an erroneous determination of law or fact does not render a judgment void
Summary of this case from Bank of N.Y. Mellon v. GlavinOpinion
October 6, 1954 —
November 9, 1954.
APPEAL from an order of the county court of Walworth county: ROSCOE R. LUCE, Judge. Affirmed.
For the appellant there was a brief by Kurt Schnellbaecher, attorney, and John J. Burke of counsel, both of Milwaukee, and oral argument by Mr. Burke.
For the respondent there was a brief and oral argument by William H. Freytag of Elkhorn.
Plaintiff commenced an action for divorce against his wife, alleging cruel and inhuman treatment. The summons and complaint were personally served on the defendant on October 10, 1947. The defendant did not appear, and on November 3, 1947, judgment of divorce was entered in favor of the plaintiff. The judgment dissolved the marriage and ordered a division of the real and personal property of the parties. The complaint described the property of the parties as follows:
"8. That the parties to this action have accumulated a little money and property consisting of cash in the bank, all of which is in the possession of the defendant, some real estate in Miramar subdivision on Potters lake in the township of East Troy, Walworth county, Wisconsin, in which premises the plaintiff is now residing; that the title to said real estate is in the name of the defendant, subject to the life estate of the plaintiff, and a 1939 Lincoln Zephyr sedan, which is in the name of the defendant and being used by and in the possession of the plaintiff."
The prayer for relief in said complaint is as follows:
"Wherefore, plaintiff demands judgment of divorce from the bonds of matrimony from the defendant; that the property be divided as a full and complete property settlement giving the defendant all of the common property of the parties, except the automobile now in the name of the defendant and the life estate of the plaintiff in the property in Miramar subdivision; and giving to the plaintiff the aforesaid automobile and permitting his life estate in the aforesaid real estate to remain; that there be no order for support of the minor son of said parties; and for such other and further relief as the court deems just and equitable."
As to the division of property, the judgment made the following provisions:
"2. That in lieu of alimony and as a full and complete property settlement the following shall constitute a final division and distribution of the estate of the parties, both real and personal:
"(a) The plaintiff is granted and hereby is given the 1939 Lincoln Zephyr sedan, title to which is now in the defendant, and the defendant is ordered to transfer title of the same to the plaintiff, forthwith.
"(b) The following described real estate located in the town of East Troy, Walworth county, Wisconsin, to wit: [description of property] and which lots are now in the name of the defendant, subject to the life estate of the plaintiff, may remain the same as now, except that should said real estate be sold, then and in that event the defendant is to execute a good and sufficient deed conveying the premises to whomsoever may purchase them upon the payment to her of eighteen hundred dollars ($1,800) without interest, constituting the equity which she has in the property.
"(c) All other money or property which the defendant may have in her possession shall be and remain her property."
On November 19, 1953, the plaintiff obtained an order, returnable on November 30, 1953, requiring the defendant to show cause why she should not, among other things, execute a deed to said property, upon the payment to her of $1,800 in cash, to a buyer found by the plaintiff. On December 30, 1953, the court entered an order, reading in part as follows:
"Ordered, that the defendant execute the deed conveying the following described premises located in the town of East Troy, Walworth county, Wisconsin, to wit: [description of property] to the purchasers under the contract for the purchase of the same executed by the plaintiff herein with said purchasers upon payment to her of eighteen hundred dollars ($1,800) in cash;
"It is further ordered, that in the event she fails to comply with this order on or before December 15, 1953, or appeals from this decision that the sale proceed regardless and the court directs that in such instance the sheriff of said county, John W. Cusack, be and he is hereby authorized to execute said conveyance in her place and stead in accordance with the statutes in such case made and provided.
"It is further ordered, that upon delivery of the deed that defendant be paid an additional one hundred dollars ($100) by the plaintiff."
The defendant appealed from said order. The plaintiff moved for a review of that part of the order that required the payment of an additional $100 by the plaintiff.
The defendant contends that the judgment is erroneous. She first calls attention to sec. 270.57, Stats., which provides that the relief granted to the plaintiff, if there be no answer, cannot exceed that which is demanded in the complaint. Attention is also called to the case of Hoh v. Hoh, 84 Wis. 378, 54 N.W. 731, in which it was held that this section of the statutes is applicable to divorce cases. This case does not appear to have been overruled by this court, although the rule therein was severely criticized in the case of Lessig v. Lessig, 136 Wis. 403, 117 N.W. 792. The defendant also states that the judgment violated sec. 247.35.
In the Hoh Case it appears that the defendant made a motion to set aside the portion of the judgment complained of at the term during which such judgment was entered. The court denied the motion and the defendant appealed from the order denying such motion and from the portion of the judgment which provided for a division of the husband's property.
Whether this court should follow the doctrine of the Hoh Case or follow the reasoning in the Lessig Case makes no difference in the determination of the question before us. An action for divorce is a statutory action governed generally by the provisions of ch. 247 of the statutes. Sec. 247.37 (4), Stats., reads as follows:
"Such judgment or decree, or any provision of the same, may be reviewed by an appeal taken within one year from the date when such judgment or decree was granted. At the expiration of such year, such judgment or decree shall become final and conclusive without further proceedings, unless an appeal be pending, or the court, for sufficient cause shown, upon its own motion, or upon the application of a party to the action, shall otherwise order before the expiration of said period. If an appeal be pending at the expiration of said year, such judgment or decree shall not become final and conclusive until said appeal shall have been finally determined."
The trial court had jurisdiction of the parties and of the subject of the action. Where that is true, even though the court errs in the determination of questions of law or fact, the judgment is not void, and within the period prescribed by law steps can be taken for the correction thereof or for a review upon appeal. Even if the contention of the defendant is correct, and we do not pass thereon, the judgment here is not void and no proceedings have been had for the correction or review thereof.
The defendant next contends that the judgment is ambiguous and should be construed to avoid making it an erroneous or void judgment. If it be conceded that the judgment as to the division of property is ambiguous we cannot say that the construction given by the court in its order of December 30, 1953, is erroneous. The judgment contemplated a sale of the real estate and in case of said sale it required the defendant to execute a conveyance thereof. The judgment can only be construed to refer to a sale by the plaintiff. The defendant is the only one required to convey by the terms of the judgment. If the judgment contemplated a sale by the defendant it would have required the plaintiff to convey. It is apparent, therefore, that the trial court properly construed the judgment.
As to the plaintiff's motion for review, it appears from the record that the plaintiff consented in open court to make this additional payment. Whether or not the plaintiff could have been compelled to make this payment in the absence of his consent we do not decide. However, as he freely consented in open court we can see no reason for disturbing the order.
By the Court. — Order affirmed.