Barry v. Niessen

Wisconsin Supreme Court

Barry v. Niessen

90 N.W. 166, 114 Wis. 256, 1902 Wisc. LEXIS 135

CourtWisconsin Supreme Court

DecidedApril 22, 1902

StatusPublished

Cited by8 cases

This text of 90 N.W. 166 (Barry v. Niessen) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barry v. Niessen, 90 N.W. 166, 114 Wis. 256, 1902 Wisc. LEXIS 135 (Wis. 1902).

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Opinion

WiNsnow, J.

The sole question in this ease is whether the bastardy judgment became a lien upon the real estate of Herbert J. Barry, in favor of the mother of the child. No judgment becomes a lien upon real estate unless .it be duly docketed (Stats. 1898, sec. 2902), and it cannot be docketed unless it be a judgment directing the present payment of money (Id. •sec. 2899). The docketing must be done at the time of filing the judgment roll, and there are no provisions for docketing of instalments which grow due in the future and depend upon contingencies (Id. sec. 2899; Staples v. Staples, 87 Wis. 592, 58 N. W. 1036). So far, then, as the judgment provided for the payment of the sum of $100 per year for the support of the child in the future, it was incapable of docketing, and hence the fact that there was an entry, on the docket purporting to docket a judgment for “amount to become due” could have no legal effect. Execution might issue upon motion when an instalment became due and remained unpaid, and property could be levied upon thereunder (Stats. 1898, sec. 1538) ; but no execution was ever in fact issued, so no lien was acquired in this way.

Had the judgment ordered the present payment of any specified sums of money to the appellant for lying-in expenses, or the previous care and support of the child (Stats. 1898, •sec. 1535), a different question would be presented. No reason is perceived why, as to such sums, the judgment might not be properly docketed, and become to that extent a lien upon property. It is true that a bastardy proceeding is said to be quasi criminal in its character, so far as the practice is concerned. State v. Mushied, 12 Wis. 561. Nevertheless it has often been held that it is not in fact a criminal prosecution, but (when instituted by the mother) is a proceeding [260]*260to enforce tbe father’s natural obligation to support his child, and brought for the benefit and protection of the mother. Baker v. State, 65 Wis. 50, 26 N. W. 167. It was manifestly under this view of the real nature of the action that it was held by this court that the mother might maintain a creditor’s action to enfoi’ce a bastardy judgment in her favor. Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735.

The insurmountable difficulty in the present case is that the bastardy judgment in question here did not adjudge the present payment of any sum of money to the mother. It adjudged generally that the father pay $11.25 costs of the action, but it does not appear, either by the judgment, or by any evidence in the case, that the mother of the child was entitled to recover these costs. Further, it is adjudged that he pay to the mother $100 per year from the date of the judgment until the child should become thirteen years of age, manifestly for the support of the child. There is no direction that such sums for support shall be paid in advance, and hence they cannot be held to become due until they have been earned, namely, at the end of each year’s support. So the only sum adjudged to be presently paid by the judgment, for which it could be legally docketed, is the sum of $11.25 costs; and it does not appear that this sum was payable to the inter-vener.

The necessary conclusion is that the judgment below is right.

By the Court. — Judgment affirmed.

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WiNsnow, J.

The sole question in this ease is whether the bastardy judgment became a lien upon the real estate of Herbert J. Barry, in favor of the mother of the child. No judgment becomes a lien upon real estate unless .it be duly docketed (Stats. 1898, sec. 2902), and it cannot be docketed unless it be a judgment directing the present payment of money (Id. •sec. 2899). The docketing must be done at the time of filing the judgment roll, and there are no provisions for docketing of instalments which grow due in the future and depend upon contingencies (Id. sec. 2899; Staples v. Staples, 87 Wis. 592, 58 N. W. 1036). So far, then, as the judgment provided for the payment of the sum of $100 per year for the support of the child in the future, it was incapable of docketing, and hence the fact that there was an entry, on the docket purporting to docket a judgment for “amount to become due” could have no legal effect. Execution might issue upon motion when an instalment became due and remained unpaid, and property could be levied upon thereunder (Stats. 1898, sec. 1538) ; but no execution was ever in fact issued, so no lien was acquired in this way.

Had the judgment ordered the present payment of any specified sums of money to the appellant for lying-in expenses, or the previous care and support of the child (Stats. 1898, •sec. 1535), a different question would be presented. No reason is perceived why, as to such sums, the judgment might not be properly docketed, and become to that extent a lien upon property. It is true that a bastardy proceeding is said to be quasi criminal in its character, so far as the practice is concerned. State v. Mushied, 12 Wis. 561. Nevertheless it has often been held that it is not in fact a criminal prosecution, but (when instituted by the mother) is a proceeding [260]*260to enforce tbe father’s natural obligation to support his child, and brought for the benefit and protection of the mother. Baker v. State, 65 Wis. 50, 26 N. W. 167. It was manifestly under this view of the real nature of the action that it was held by this court that the mother might maintain a creditor’s action to enfoi’ce a bastardy judgment in her favor. Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735.

The insurmountable difficulty in the present case is that the bastardy judgment in question here did not adjudge the present payment of any sum of money to the mother. It adjudged generally that the father pay $11.25 costs of the action, but it does not appear, either by the judgment, or by any evidence in the case, that the mother of the child was entitled to recover these costs. Further, it is adjudged that he pay to the mother $100 per year from the date of the judgment until the child should become thirteen years of age, manifestly for the support of the child. There is no direction that such sums for support shall be paid in advance, and hence they cannot be held to become due until they have been earned, namely, at the end of each year’s support. So the only sum adjudged to be presently paid by the judgment, for which it could be legally docketed, is the sum of $11.25 costs; and it does not appear that this sum was payable to the inter-vener.

The necessary conclusion is that the judgment below is right.

By the Court. — Judgment affirmed.

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90 N.W. 166, 114 Wis. 256, 1902 Wisc. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-niessen-wis-1902.

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