Lessig v. Lessig

Wotslow, O. J.

1. The motion to open the judgment and set aside the default and allow the defendant to plead was a motion addressed to the sound discretion of the court. There were a number of affidavits on both sides, and the question whether the defendant showed facts which should ho held to excuse the neglect was a fairly debatable one. It is not deemed necessary to review the affidavits. We have carefully examined them and have concluded that there was no abuse of discretion in denying the motion. Under these circumstances the appeal from the order must he dismissed. R. Connor Co. v. Goodwillie, 120 Wis. 603 , 98 N. W. 528 .

2. Upon the appeal from portions of the judgment different questions are presented. As to that portion of the judgment making final division of the property, it is claimed by appellant that there should he a reversal upon the ground that no such relief is demanded by the prayer of the complaint, and that under sec. 2886, Stats. (1898), and the case of Hoh v. Hoh, 84 Wis. 378 , 54 N. W. 731 , this portion of the judgment must be reversed. That was a case where the wife brought the action and prayed only for allowance of alimony, and it was held that upon default a judgment for division of the husband’s property could not be sustained because it was not demanded in the complaint. The sweeping provisions of sec. 2364, Stats. (1898), which provide that either alimony or division of the property may be adjudged upon every divorce from the bond of matrimony except when granted for adultery of the wife, were not mentioned or considered. Whether that decision would be adhered to in view of the further fact that the public interest in the support of the wife after divorce is always involved may be doubtful, *406 but, however that may be, we do not consider that decision as controlling here. In the present case the husband brought the action, and the division of his property and awarding a portion of it to his wife was not in any true sense “relief granted to the plaintiff,” but rather relief granted to the defendant. But even if it be regarded as relief granted to the plaintiff, and the principle decided in Hoh v. Hoh be considered as correct, still there can be no reversal; for, if division of the property could not be awarded under the complaint, no more could alimony, because neither is demanded, and so the defendant secures by the judgment just so much more than could properly be given her, and hence cannot be considered as aggrieved. On the other hand, if Hoh v. Hoh be not followed, then it was within the power of the court to award either alimony or division of the property, and, the evidence not being preserved by bill of exceptions, we cannot say that there was any error in awarding a division. So, whatever view be taken of the matter, this part of the judgment must be affirmed.

As to that part of the judgment purporting to “wholly” release the plaintiff from the support and education of the minor child, this provision must be read in connection with secs. 2362, 2363, Stats. (1898), which authorize the insertion of provisions for the care, custody, and maintenance of the children in a judgment for divorce, and empower the court, upon petition, to revise and alter such provisions from time to-time as circumstances may require. These provisions in legal effect became a part of the judgment, and under them this judgment is open for revision in these respects upon proper petition and showing at any time notwithstanding the use of the word “wholly.”

By the Gourt. — The appeal from the order is dismissed, and those parts of the judgment appealed from are affirmed without costs, except that the respondent is required to pay the fees of the clerk of this court to be taxed.