The following opinion was filed at the January term, 1870.
Dixon, C. J.
The statute provides that any person aggrieved by any order, sentence, judgment or denial of a judge of the county court, may appeal therefrom to the circuit court for the same county. R. S. ch. 117, § 24. The question whether the party appealing in any case is a person thus designated by the statute, and to whom the right of appeal is given, is essen[158]*158tially a preliminary one. The objection being raised that the appellant is not such person, but a stranger to the order or sentence appealed from, it is clearly in the nature of matter in abatement, which, like any other, should be brought forward before further steps are taken, though not waived, perhaps, if not so brought forward. If sustained, it goes to show that the party appealing, or attempting to do so, cannot prosecute that appeal, nor any other,- and that the merits of the order or sentence appealed from should never be tried at his instance or suggestion. It follows, therefore, that his appeal should be dismissed, and that, too, at the earliest possible moment when the fact can be judicially ascertained. The reason and propriety of this rule or mode of proceeding are too obvious to require comment or explanation.
The objection in this case was taken by motion. The appellants here, respondents below, moved to dismiss the appeal, on the ground, among others, that the appellant had no interest in the subject-matter of the appeal. Attending the motion, and referred to in it, were all the affidavits, papers and documents relied upon in support of it. This, we think, was the proper mode of raising the objection and bringing it before the court' for determination. In such case, if any serious or doubtful question of fact arises, an issue may be made up and the verdict of a jury taken, as has been frequently decided by this court. 16 Wis. 303; 15 id. 475; 18 id. 571.
On this motion no such issue was made, and we think none was necessary. This results from the nature of the evidence relied upon in support of the motion. The evidence was an exemplified copy of the record of a divorce suit in the superior court of the city of New York, showing -that the appellant was not, as she alleged, the widow of the deceased, and so was not interested in the subject-matter of the appeal. This was not evidence to be submitted to a [159]*159jury in any case, except as they were governed and directed by the superior knowledge and judgment of the court. The effect of such record, or what it proves or does not prove, is for the court to decide. It would have been idle, therefore, to have submitted the question of fact, arising upon the motion, to the consideration of a jury.
In opposition to the motion, two affidavits were read by counsel for the appellant, which, together with some objections urged by them against the record in the divorce suit, it becomes necessary to consider. The affidavits were read for the purpose of showing that the superior court of the city of New York had no jurisdiction of the subject-matter of the divorce suit; that the judgment therein was procured by fraud against the appellant; and that in another action lately pending in the supreme court of New York, which was for the partition of certain lands, it had been adjudged that the appellant was the wife of the deceased. The' affidavits were made by the counsel themselves, who appeared for the appellant, and were altogether unsatisfactory for the purpose of showing the two first facts claimed. With respect to the jurisdiction of the court in the divorce suit, one of the counsel made oath that it “ was, at the time said action was pending, and still is, a court of limited and not of general jurisdiction; and this appellant claims and alleges that said superior court had not jurisdiction of the subject-matter of said action.” This was testifying that the appellant claimed and alleged that court had no jurisdiction of the subject-matter of the action, but no statement or evidence whatever of the fact, if it was such, as it undoubtedly was not. In the other affidavit, made by counsel residing in the city of New York, and familiar with the jurisdiction and practice of the superior court, and who had, himself, been engaged in' the divorce suit, nothing at all was said of the jurisdiction of the court over the subject-mat[160]*160ter of the action. The statement there was that it was not a court of general jurisdiction, but was limited by statute. It contained no intimation that the court had no jurisdiction in actions for divorce, or in that action.
And the charge of fraud was equally unsupported by any evidence or proof of facts. The affidavit reads thus: “ And deponent further says, that it is claimed by said appellant, and she alleges, that said last named judgment was procured and obtained by the fraud and collusion of said James Amory” etc. This, like the other, is a mere statement by the counsel under oath of what his client claims and alleges the fact to be.
The other fact stated in the affidavits, with respect to the judgment in the partition suit, was fully rebutted or shown to be immaterial by what appears from the record in the divorce suit. The judgment in partition was in 1851, and that in the divorce suit in 1860. It appears from the record in the latter case, that the appellant filed her petition, and applied therein, in 1866, to have the decree set aside and. the cause reopened, on account of the fact of marriage claimed to have been established and the estoppel created by. the judgment in partition; and that such application was denied by the court. The petition fully set forth the claim of the appellant, the same now urged, with respect to the partition judgment, and also her excuses for not having produced the same at the trial of the divorce suit. The effect of the order denying that application must be to conclude her from all further agitation of the same question. The order remaining unreversed and not appealed from, she is debarred henceforth from insisting upon the estoppel of the partition judgment, if it ever operated as such, as against the testator and his legal representatives. Eor in making the order, either the court must have found that she was inexcusable in [161]*161not producing the partition judgment in evidence on the trial of the divorce suit, or else that it constituted no estoppel against the testator upon any question of fact involved in that suit; and which way the court found was immaterial. If the motion was denied on the ground of her negligence in not producing the partition judgment in evidence when she ought, and in allowing judgment to go against her in the divorce suit without it, that concludes her from raising the same question elsewhere, and if on the other ground, she is, a fortiori, concluded.
As to the positions taken by counsel to show that the only judgment which could have been rendered in the divorce suit was one simply dismissing the complaint, and that the judgment which was rendered is conclusive only of the fact that the parties were not married on or about the 12th day of March, 1846, we are clearly of opinion that they are all untenable. A judgment of dismissal, after a hearing upon the merits, is, as we understand it, conclusive upon the complainant as to all facts involved in the issue; and the prayer of the answer, that the complaint might be dismissed, did not preclude the court from adjudicating specially upon every fact set up in the answer as the ground of such relief. The prayer for relief does not go to the jurisdiction of the court.
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The following opinion was filed at the January term, 1870.
Dixon, C. J.
The statute provides that any person aggrieved by any order, sentence, judgment or denial of a judge of the county court, may appeal therefrom to the circuit court for the same county. R. S. ch. 117, § 24. The question whether the party appealing in any case is a person thus designated by the statute, and to whom the right of appeal is given, is essen[158]*158tially a preliminary one. The objection being raised that the appellant is not such person, but a stranger to the order or sentence appealed from, it is clearly in the nature of matter in abatement, which, like any other, should be brought forward before further steps are taken, though not waived, perhaps, if not so brought forward. If sustained, it goes to show that the party appealing, or attempting to do so, cannot prosecute that appeal, nor any other,- and that the merits of the order or sentence appealed from should never be tried at his instance or suggestion. It follows, therefore, that his appeal should be dismissed, and that, too, at the earliest possible moment when the fact can be judicially ascertained. The reason and propriety of this rule or mode of proceeding are too obvious to require comment or explanation.
The objection in this case was taken by motion. The appellants here, respondents below, moved to dismiss the appeal, on the ground, among others, that the appellant had no interest in the subject-matter of the appeal. Attending the motion, and referred to in it, were all the affidavits, papers and documents relied upon in support of it. This, we think, was the proper mode of raising the objection and bringing it before the court' for determination. In such case, if any serious or doubtful question of fact arises, an issue may be made up and the verdict of a jury taken, as has been frequently decided by this court. 16 Wis. 303; 15 id. 475; 18 id. 571.
On this motion no such issue was made, and we think none was necessary. This results from the nature of the evidence relied upon in support of the motion. The evidence was an exemplified copy of the record of a divorce suit in the superior court of the city of New York, showing -that the appellant was not, as she alleged, the widow of the deceased, and so was not interested in the subject-matter of the appeal. This was not evidence to be submitted to a [159]*159jury in any case, except as they were governed and directed by the superior knowledge and judgment of the court. The effect of such record, or what it proves or does not prove, is for the court to decide. It would have been idle, therefore, to have submitted the question of fact, arising upon the motion, to the consideration of a jury.
In opposition to the motion, two affidavits were read by counsel for the appellant, which, together with some objections urged by them against the record in the divorce suit, it becomes necessary to consider. The affidavits were read for the purpose of showing that the superior court of the city of New York had no jurisdiction of the subject-matter of the divorce suit; that the judgment therein was procured by fraud against the appellant; and that in another action lately pending in the supreme court of New York, which was for the partition of certain lands, it had been adjudged that the appellant was the wife of the deceased. The' affidavits were made by the counsel themselves, who appeared for the appellant, and were altogether unsatisfactory for the purpose of showing the two first facts claimed. With respect to the jurisdiction of the court in the divorce suit, one of the counsel made oath that it “ was, at the time said action was pending, and still is, a court of limited and not of general jurisdiction; and this appellant claims and alleges that said superior court had not jurisdiction of the subject-matter of said action.” This was testifying that the appellant claimed and alleged that court had no jurisdiction of the subject-matter of the action, but no statement or evidence whatever of the fact, if it was such, as it undoubtedly was not. In the other affidavit, made by counsel residing in the city of New York, and familiar with the jurisdiction and practice of the superior court, and who had, himself, been engaged in' the divorce suit, nothing at all was said of the jurisdiction of the court over the subject-mat[160]*160ter of the action. The statement there was that it was not a court of general jurisdiction, but was limited by statute. It contained no intimation that the court had no jurisdiction in actions for divorce, or in that action.
And the charge of fraud was equally unsupported by any evidence or proof of facts. The affidavit reads thus: “ And deponent further says, that it is claimed by said appellant, and she alleges, that said last named judgment was procured and obtained by the fraud and collusion of said James Amory” etc. This, like the other, is a mere statement by the counsel under oath of what his client claims and alleges the fact to be.
The other fact stated in the affidavits, with respect to the judgment in the partition suit, was fully rebutted or shown to be immaterial by what appears from the record in the divorce suit. The judgment in partition was in 1851, and that in the divorce suit in 1860. It appears from the record in the latter case, that the appellant filed her petition, and applied therein, in 1866, to have the decree set aside and. the cause reopened, on account of the fact of marriage claimed to have been established and the estoppel created by. the judgment in partition; and that such application was denied by the court. The petition fully set forth the claim of the appellant, the same now urged, with respect to the partition judgment, and also her excuses for not having produced the same at the trial of the divorce suit. The effect of the order denying that application must be to conclude her from all further agitation of the same question. The order remaining unreversed and not appealed from, she is debarred henceforth from insisting upon the estoppel of the partition judgment, if it ever operated as such, as against the testator and his legal representatives. Eor in making the order, either the court must have found that she was inexcusable in [161]*161not producing the partition judgment in evidence on the trial of the divorce suit, or else that it constituted no estoppel against the testator upon any question of fact involved in that suit; and which way the court found was immaterial. If the motion was denied on the ground of her negligence in not producing the partition judgment in evidence when she ought, and in allowing judgment to go against her in the divorce suit without it, that concludes her from raising the same question elsewhere, and if on the other ground, she is, a fortiori, concluded.
As to the positions taken by counsel to show that the only judgment which could have been rendered in the divorce suit was one simply dismissing the complaint, and that the judgment which was rendered is conclusive only of the fact that the parties were not married on or about the 12th day of March, 1846, we are clearly of opinion that they are all untenable. A judgment of dismissal, after a hearing upon the merits, is, as we understand it, conclusive upon the complainant as to all facts involved in the issue; and the prayer of the answer, that the complaint might be dismissed, did not preclude the court from adjudicating specially upon every fact set up in the answer as the ground of such relief. The prayer for relief does not go to the jurisdiction of the court. It may grant any relief consistent with the case made, without any prayer, or different from that prayed. Mineral Point R. R. Co. v. Supervisors of Iowa County, 24 Wis. 93. And whether the only fact in issue was as counsel contend, will he best known by allowing the record to speak for itself. The complaint charged a marriage between the plaintiff and defendant “ on or about the 12th day of March, 1846,” and subsequent cohabitation as man and wife. The answer denied the marriage “ on or about the 12th day of March, 1846-, or at any other time,” and the cohabitation as man and wife, and alleged that the defendant was a “ single man, and [162]*162was never married to the said plaintiff.” The referee, to whom the cause was referred for trial, found and reported “ that the plaintiff and defendant were not married on or about the 12th day of March, 1846, or at any other time.” The court “ordered, adjudged and decreed, that the report of said referee he, and the same is hereby, in all things confirmed;” and further, “ that neither on or about the 12th day of March, 1846, nor at any other time, the plaintiff Angelina and the defendant James Amory were married, and that she is not, nor ever was, the wife of James Amory, defendant.” If this record is not a finality as to the status of the parties at the time the judgment was pronounced, then we are at a loss to know what record of a judicial proceeding could be. The fact whether the parties were then husband and wife was as plainly in issue as that whether the marriage ceremony had been performed between them; and as to this latter fact, the issue clearly was not whether they were married on or about the day named in the complaint, but whether at that or any other time before the commencement of the action. The true point of inquiry before the court was as to the then existing relation between the parties, of which, if they had been husband and wife, proof of the due solemnization of marriage at any prior time would have been competent evidence. The record is, therefore, conclusive that such was not the relation existing between them in 1860; and it not being anywhere claimed or suggested that they afterwards intermarried, the presumption must be that their condition remained unchanged, and that no marriage relation existed at the time of the testator’s death.
We refer to Garwood v. Garwood, 29 Cal. 514, as a case fully in point upon the questions above examined, and as fully sustaining our conclusions with respect to them. See also Veazie Bank v. Young, 53 Maine, [163]*163555, and cases there cited, and Edwards v. Gaulding, 38 Miss. 118.
It follows from these views, that the court below should have dismissed the appeal, and that the order must be reversed and cause remanded, with directions that the same be dismissed.
By the Court. — So ordered.
A motion for a rehearing was denied at the June term, 1870.