Summary
Proceeding to trial without a jury is conduct that manifests a party's consent.
Summary of this case from Singh v. Joe Sanfelippo Cab, Inc.Opinion
December 4, 1950, 1950 —
January 9, 1951.
APPEAL from a judgment of the circuit court for Marquette county: BRUCE F. BEILFUSS, Circuit Judge, Presiding. Modified and, as modified, affirmed.
For the appellant there was a brief by William J. Morgan, attorney, and Morgan Berkwich of counsel, all of Milwaukee, and oral argument by William J. Morgan.
For the respondent there was a brief by Vincent McNamara, and oral argument by Vincent McNamara and Dan R. McNamara, both of Montello.
This is an action in equity which was begun April 22, 1949. Judgment was entered September 26, 1949.
By this action the plaintiff, Mrs. Dunn, seeks to open and reform a decree of divorce entered by the same court in her favor approximately nine months before the present action was commenced. The complaint alleges that in the original action defendant coerced his wife, the plaintiff, to omit from her pleadings and testimony allegations concerning his adultery and coerced her into signing a stipulation concerning custody of the children and the division of the property. It sets forth purported facts concerning the husband's conduct and the extent of his property, and charges that a mortgage on the parties' farm in Marquette county is fraudulent and her signature thereon is a forgery. The complaint joins the mortgagee as a party defendant. The plaintiff prays the court to open the former judgment of divorce and grant such relief as may be just and equitable.
The parties then had other counsel. The defendant answered to the merits and prayed, too, that the former judgment be opened, the divorce previously granted be set aside, and the marriage annulled. There was a trial to the court at the end of which the court made findings of fact and conclusions of law substantially in accord with the allegations of the complaint. It also found that the husband had perpetrated a fraud upon the court by coercing the wife to suppress material testimony in the original action. Judgment was entered which confirmed the original decree of divorce, and awarded custody to Mrs. Dunn of Mr. Dunn's two children by a former marriage, with a lump sum of $1,500 for the support of the younger, who was sixteen years old, until he should become eighteen. The judgment also revised the property settlement by declaring void the mortgage on the farm and it awarded the entire farm to Mrs. Dunn in place of the half interest given her by the previous judgment. Attorneys' fees and disbursements were allowed and made a part of the judgment.
The mortgagee has not appealed. The defendant has appealed but has not settled a bill of exceptions and the matter is before us on the pleadings, exhibits, findings and conclusions, and judgment.
Several of appellant's contentions may be quickly disposed of. After the original judgment and before the present one the eider son became twenty-one years of age and died. We regard all questions concerning his custody as moot.
Appellant submits that the support allowance for the younger son, $1,500 for less than two years of prospective support, is excessive. We are not able to agree, in the absence of testimony concerning the need of the son and the resources of the father. For lack of a bill of exceptions we must presume the evidence would sustain the award. The same answer must be made to appellant's argument that the property division is excessively favorable to the wife. Appellant argues that she is given his entire property but the complaint alleges that he owns real estate in Illinois and his answer admits he has an interest in such property. The pleadings themselves refute the argument and appellant is here without evidence to contradict them or to impeach the findings.
Appellant also submits that the plaintiff should have proceeded by petition or motion in the original action. By answering to the merits and joining in the plaintiff's prayer to open and modify the judgment, defendant did all that man could do to recognize the jurisdiction of the trial court, but he now asserts that the procedure of bringing an independent action was so radically wrong that the court should have dismissed the suit for want of jurisdiction. In this he relies upon Yates v. Yates (1914), 157 Wis. 219, 147 N.W. 60, which dealt with the provisions of a judgment concerning the support of a minor. If custody and support were the only questions to be considered here the present case would be ruled by the Yates decision, for in such respects the original action remains open during the minority of an affected child for revision as changed conditions may require. It is otherwise with the part of the judgment disposing of property. After the time has expired when the court can modify its judgment or appeal be taken, those provisions are no longer open and can be reached only by an attack on the judgment itself. The instant case presents not only a property division which has become fixed but also allegations of fraud and duress, thus injecting elements which the Yates opinion noted as absent. Finally, the mortgagee was not a party to the first action but the complaint proposes to invalidate the mortgage. While he might have been brought in upon a motion to review and amend the previous decree because procured by fraud, we see no reason to reject on jurisdictional grounds a complaint which substantially is the equivalent of the old bill in equity.
49 C.J.S., Judgments, p. 690, sec. 341. "Equitable relief against a judgment, although not regarded with favor by the courts, may nevertheless be had where sufficient grounds appear; and under some circumstances the remedy in equity is exclusive.
"On a showing of proper circumstances, and when required by the ends of justice, appropriate relief against a judgment may be had in equity, the power of equity in this connection being inherent, and existing irrespective of any statute authorizing such relief. A bill attacking a judgment is not regarded with favor by the courts, and will lie only in exceptional cases. Such relief may be had, not of right, but in the exercise of a sound legal discretion, and each case must stand on its own peculiar merits."
49 C.J.S., Judgments, p. 732, sec. 371. "A judgment may be attacked in equity on the ground of duress, although entered pursuant to ostensible agreement or consent of the parties. . . ."
We should say that an attack in equity upon a judgment on the ground that the party was coerced in her pleadings and evidence can seldom prevail because of the opportunity the party ordinarily has to apply to her attorney or to the court for protection while the litigation is pending. While we think it very nearly impossible for a party to persuade courts to extend equitable relief under such circumstances, we cannot hold that it is absolutely so and, lacking a bill of exceptions, we must presume that the evidence here satisfied the trial court, and would satisfy us, that the effect of the coercion persisted and prevented Mrs. Dunn from making a disclosure the duress before the entry of the first decree. The matter must rest in the court's sound discretion and appellant presents no record on which the exercise of discretion can be attacked. We conclude that the action is not to be dismissed for want of equitable jurisdiction.
Appellant submits that it was reversible error for the court to try the action without a jury when there was an issue of his adultery, even though the trial court did not find adultery had been committed. Sec. 270.07, Stats., directs a jury trial when divorce is sought on the ground of adultery but provides that the right may be waived by the failure of a party to appear at the trial, or by his written consent filed with the court, or by consent in open court entered in the minutes. These provisions are certainly for the protection of the party against whom the charge is made and no other purpose occurs to us.
The protection may be waived by conduct manifesting consent to a trial by the court. When the defendant and his attorney proceeded to try the case to the court such consent was given. The appeal, without a bill of exceptions to bring us the minutes of the court, leaves appellant subject to the presumption that the minutes would show the consent duly entered.
Appellant finally protests the allowance of fees and disbursements to one Robert Lee, who appeared for and tried the action, as an attorney at law, in behalf of the plaintiff and who, with other counsel, submitted a brief for her on the appeal. Upon the argument it was established that he has not been licensed to practice in Wisconsin and has been disbarred elsewhere. We ordered his name struck from the brief forthwith. If he cannot practice law in Wisconsin of course a state court cannot give him compensation for doing so. Accordingly, we reverse that part of the judgment which allows fees and disbursements to him. In other respects the judgment is affirmed.
By the Court. — Judgment modified by denying to Robert Lee the attorney's fees and disbursements there allowed him, and as so modified, affirmed. Costs allowed to respondent.