Jones v. Jones

Taylor, J.

This is an appeal from an order of tbe circuit court of Milwaukee county made on tbe 8tb day of March, 1890, refusing to set aside a judgment entered in this case November 10, 1883.

This action was an action for divorce from bed and board. Tbe defendant was, duly served with process in said action, but failed to appear in tbe case. Tbe complaint was served upon the defendant with tbe summons. The prayer of tbe complaint was as follows: “ Tbe plaintiff prays for a judgment of separation from bed and board for a limited time from said defendant; that said defendant may be ordered to pay to tbe attorney for tbe plaintiff a reasonable sum of money to enable her to prosecute this action, and that tbe defendant may also be ordered to pay to tbe plaintiff temporary as well as permanent alimony, and for such other and such further relief in tbe premises as may to tbe court seem just, reasonable, and proper.” On tbe 10th of November, 1883, tbe circuit court entered tbe following judgment in tbe action, viz.: “ Now, upon motion of David "W". Small, plaintiff’s attorney, it is hereby adjudged and decreed that a separation from bed and board between tbe plaintiff and defendant herein be and hereby is decreed and adjudged, and it is further adjudged and decreed that said plaintiff and said defendant be and are hereby separated from bed cmd board forever; that said defendant, Allen Jones, pay to tbe said plaintiff for support tbe sum of twenty-five dollars per month, payable on tbe first of each and every month, tbe first payment to be made for tbe month of November, 1883, within ten days after tbe service of notice of judgment, and that he, said defendant, pay tbe plaintiff’s costs, fixed by tbe court at forty-five dollars. By tbe court. Charles A. HaMiltoN, Circuit Judge.” Shortly after tbe entry of this judgment a copy of tbe same was duly served personally upon tbe said defendant, and after such service upon him an agreement was made between tbe parties by which tbe *448 alimony allowed to the plaintiff in the judgment was reduced to $20 per month.

The grounds set up by the appellant for his motion to set aside the judgment are —first, that he was in some way misled as to the effect of the judgment rendered in the action ; he alleges that he supposed it was a divorce from the bond of matrimony instead of from bed and board; and, second, that the circuit court exceeded its powers under the complaint; that under the complaint, the defendant not appearing, the court should have rendered a judgment for divorce from bed and board for a limited term, and not “ forever.”

It seems to us that the circuit court properly disregarded the claim made by the defendant that he was misled as to the effect of the judgment in the case. Possibly if his motion had been made within one year after he had notice of the judgment the court might have considered it, and, if satisfied that he had been in fact misled or misinformed as to its effect, he might have obtained relief under sec. 2832, E. S. It is unnecessary to cite authorities to show that he was not entitled to any relief under said section after the lapse of nearly seven years after he had full. notice of the judgment.

The other ground for relief, that the judge granted greater relief than that demanded in the complaint, would only entitle the defendant to relief by motion made at the same term at which the judgment was entered; and, if it was too late when he ascertained the fact to make the motion in time, then he could get relief only by appeal from the judgment.

The court had jurisdiction of the parties and the subject matter of the action, and had the right and it was its duty to render a judgment in such action; and having rendered a judgment therein which it might have properly rendered had the complaint asked the relief granted, the judgment *449 is not void, and could not, therefore, be set aside by the court which directed the same to be entered, unless it was set aside at the same term it was entered, or upon motion made within one year after notice of judgment, for the causes mentioned in said sec. 2882, R. S. That the judgment was not void, see In re Graham, 74 Wis. 450, 451 ; State ex reí. Welch v. Sloan, 65 Wis. 647 .

The judgment not being void, all the cases agree that it cannot be set aside after the term at which it was rendered, or changed after that time, except for the purpose of making it conform to the judgment actually announced by the court.

By the Court.— The order of the circuit court is affirmed.