Opinion
May 9, 1957 —
June 4, 1957.
APPEAL from a judgment of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellant there was a brief by Van Susteren Bollenbeck of Appleton, and oral argument by Edward R. Bollenbeck.
For the respondent St. Joseph Cemetery there was a brief and oral argument by William J. Geenen of Appleton.
For the respondents other than St. Joseph Cemetery there was a brief and oral argument by Edgar E. Becker of Appleton.
John F. Ryan began action on April 27, 1956, against Effie Gehring Schmit, Elizabeth Gehring Kampo, Viola M. Kampo, Wichmann Funeral Home, and St. Joseph Cemetery, seeking to compel the Funeral Home to move the body of Lorena Gehring Ryan from one grave to another and to enjoin the other defendants from interfering with the transfer.
These facts appear in the complaint: Plaintiff was the husband of Lorena, who died June 10, 1953. Lorena, Effie, and Elizabeth were sisters. They owned a burial lot in St. Joseph Cemetery, a cemetery corporation, at Appleton. The lot contained 10 burial sites, a row of five to the north, numbered from 1 to 5, left to right, and five to the south, numbered from 6 to 10. Sites 6 to 10, inclusive, were vacant, and Margaret Gehring, Lorena's mother, had been buried in grave No. 2.
After Lorena's death, her husband instructed the Funeral Home to bury her in grave No. 1, next to her mother but the Funeral Home followed instructions given by Effie and Elizabeth and buried her in grave No. 4. Thereafter, plaintiff husband repeatedly demanded the transfer, but the Funeral Home refused "stating that the defendant, St. Joseph Cemetery, has advised them that grave No. 1 . . . is filled and occupied by another deceased member of the Gehring family, to wit, Louis Gehring, and that no transfer would be permitted." Plaintiff, however, alleged that grave No. 1 is vacant.
All defendants appeared by counsel and demurred to the complaint for failure to state facts sufficient to constitute a cause of action. The defendants other than the Cemetery also asserted other grounds.
A photostat was placed on file in the circuit court and returned as part of the record on appeal. An accompanying letter from the attorney for the Cemetery asserts that it is a copy of the record of the Cemetery showing burials on the lot in question and that it is furnished pursuant to a request of the court at the time of argument. The photostat and letter would support the assertion that grave No. 1 is occupied by Louis Gehring.
On November 23, 1956, an order was entered sustaining the demurrers, and plaintiff's counsel admitted service November 26th. On December 14th, without further notice to plaintiff, judgment was entered on motion of counsel for defendants. It dismissed the action upon its merits and awarded $100 costs and $12.75 disbursements to Effie, Elizabeth, Viola, and the Funeral Home, and $100 costs to the Cemetery, which had appeared by separate counsel. Plaintiff appealed from the judgment.
From the photostat of the Cemetery's record, we could speculate that the excuse allegedly given by the Cemetery and relayed to plaintiff by the Funeral Home, namely that grave No. 1 was already occupied, is true and would defeat plaintiff on the merits even if we follow his theory of the law.
The parties have not stipulated, however, that the photostat may be considered and it is not properly before us. The question here, as in the circuit court, is the sufficiency of the complaint, under familiar rules.
It is undisputed that Mrs. Ryan was a co-owner of the family lot and was entitled to burial within it. Her surviving husband, the plaintiff, had the right to determine whether she should be buried there or elsewhere. Did the plaintiff have a further right to designate the particular location, within the lot, for her grave?
Plaintiff contends for a rule that when several persons are entitled to burial in a lot containing several gravesites, each shall have his choice among the sites available at the time of his death. Plaintiff phrases his rule: "First dead, first choice." This rule is not contained in any statute. It is not alleged that any regulation of the Cemetery, any terms of its conveyance of the lot, nor any agreement among the owners so provides. Plaintiff has cited no case which applies such a rule.
We are of the opinion that when Mrs. Ryan died, her interest in the family lot descended to her heirs. Sec. 157.10, Stats. Her husband may be her heir, although the complaint does not so allege. After her death her heirs and her sisters owned the lot as tenants in common, subject to the rights of the owners and members of their families to be buried therein as long as space remained available. Jackson, Law of Cadavers (2d ed.), p. 368. The general rule of tenancy in common is that no cotenant has a right to exclude other cotenants nor to appropriate to his sole use any particular portion of the property in which all have an undivided interest. 14 Am. jur., Cotenancy, p. 95, sec. 24. With respect to cemetery lots, this rule is necessarily subject to the modification that when the lot becomes fully occupied, the remaining owners must be excluded. We conclude that decision as to the location of a particular grave rests with those who are living co-owners at the time. We are of the opinion that the only right of Mrs. Ryan which her husband could independently assert, in the absence of controlling statute, regulation, or agreement, was her right to be buried within the lot and that right has been accorded her.
We are mindful of the fact that co-owners may disagree as to who shall lie next to whom and that an unfortunate situation might arise where disagreement prevented burial within the family lot. If the court were then asked to intervene, it might resort to the rule urged by plaintiff, if no other basis for resolving the dispute appeared more equitable under all the circumstances. The right being vindicated by the court in such a case would be the right of burial on the family lot, rather than any right to a particular location. It should be noted that the action before us is one to effect disinterment, brought two years and ten months after the burial. A formula which might commend itself as an expedient means of resolving a dispute which obstructed rightful burial does not delineate a right which a court must vindicate by ordering disinterment and transfer to another site on the same lot.
The circuit court properly sustained the demurrer. Its order did not direct judgment for defendants nor allow costs. Had it done so, it would have been sustained, for it appears that a sufficient complaint cannot be framed. Pedrick v. First Nat. Bank of Ripon (1954), 267 Wis. 436, 441, 66 N.W.2d 154. Had the order directed judgment, defendants could properly have entered judgment without further notice to plaintiff. Sec. 270.64, Stats. No such direction having been made, we conclude that orderly procedure required that notice be given of defendants' application for judgment. In any event, the disbursements should not have been taxed and allowed except upon notice to plaintiff. Sec. 271.10(1). It is highly improbable that there would have been any different result even if plaintiff had had notice although conceivable that plaintiff might have persuaded the court to fix costs at something less than the maximum. We deem that justice will be done if the judgment is affirmed, but each party pays his own costs in this court.
By the Court. — Judgment affirmed; no party shall recover costs in this court; appellant shall pay the fees of the clerk.