Opinion
November 10, 1955 —
December 6, 1955.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there were briefs by Wickert Fuhrman of Milwaukee, and oral argument by Harold H. Fuhrman.
For the respondent there was a brief and oral argument by Bernard N. Freudenfeld of Milwaukee.
Action for alienation of affections by Mildred Arkens against Adeline Bykowski. The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action and also that it appears upon the face of the complaint that the action was not commenced within the time limited by law. The action was commenced February 18, 1955. The complaint alleges that in the month of March, 1954, the defendant, knowing that the plaintiff was the wife of Edward Arkens, and wrongfully intending to injure the plaintiff and deprive her of the society, companionship, love and affection, and assistance of her husband, wilfully and maliciously commenced to court the society of the said husband and did continue in that conduct, destroying the relation between the plaintiff and her husband. The trial court overruled the demurrer because it was the considered opinion of that court that from the date of the acts alleged there was "nothing to indicate that the plaintiff had completely lost all hope of re-establishing the companionship and society of her former husband, except only in so far as the allegations of the complaint indicate that a short time prior to the granting of the divorce the affections of the former husband had been alienated by the defendant."
From the order overruling the demurrer, the defendant appeals.
The circumstances set out in the complaint may reasonably be construed to be that a cause of action arose within the year limited for the commencement of such an action. It is not timely under the state of the record before us to determine whether or not there had come to pass a complete ending of the relation which ordinarily exists between husband and wife. Although an action for divorce was pending during the month when plaintiff alleges the conduct on the part of the defendant occurred, there is reason on which to base the assumption "that the home of the parties would be re-established." We quote from the trial court's opinion, in which he says: "In cases of separation as well as those in which divorce actions have been commenced, there is the ever continuing hope of the re-establishment of the home of the parties. Where an action for divorce has been commenced, the parties are not strangers to each other. The marital status continues until terminated by a proper judgment of divorce." He sustains the reasoning by reference to the opinion of Mr. Chief Justice RYAN in Campbell v. Campbell, 37 Wis. 206, 213, 214. We agree that the pleadings, in the form in which they are, present allegations that the alienation had not been accomplished more than a year prior to the commencement of the action. The overruling of the demurrer must be affirmed.
By the Court. — Order affirmed.