Downer v. Howard

44 Wis. 82

• Court: Wisconsin Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Taylor, J.

It is urged by the counsel for the appellant, that, by the death of the respondent before final judgment on the appeal in this court, not only the appeal abated, but the whole action; and that no order or judgment of this court could be made either dismissing the appeal or affirming or reversing the judgment of the court below, but simply an order declaring that all the proceedings in the action, including the judgment of the court below, were avoided and abated by the death of the respondent, and that neither party conld have any benefit of the proceedings and judgment in such action.

We do not think this view of the case can be sustained. An appeal from the judgment of the circuit court does not vacate that judgment, nor even stay proceedings thereon, unless upon such appeal security be given by the appellant as required by the statute. If, therefore, the appeal abates by the death of either party after the appeal is perfected and record transmitted to this court, and the appeal is from a judgment of such a nature that the appeal cannot be revived and continued in favor of or against the personal representatives of the deceased party, the only order this court can make is to remit the record to the court below, where the judgment must stand as though no appeal had been taken therefrom.

When there is an appeal to this court from a judgment in an action for divorce, and such judgment simply denies a divorce to the party seeking it, and the appeal is taken from such judgment by the party seeking the divorce, and, pending such appeal, either the appellant or respondent dies, we are of the opinion that the appeal abates, and that it cannot be revived or continued in favor of either party. In that case, the whole subject of the litigation is abated, and there is no one who can legally have any further interest in the case. So, in this case, the appeal of the defendant from so much of the judgment of the court below as refused him a divorce upon his counterclaims, abated by the death of the respondent; and this court will not undertake to review the evidence upon that point, to see whether the j udgment of the court below is sustained or not. We do not intend to decide what effect the death of either party after appeal brought from a judgment granting a divorce, would have upon the case, or upon the power of this court to review the judgment in such case. It is probable that, in such case, if rights of property depended upon the reversal or affirmance of such judgment, this court would permit the appeal to be revived in favor of those whose rights were so affected.

Under our laws of descent, if there be no issue, in case of the death of the wife, the husband inherits, and in case of the death of the husband, the wife inherits.

In c^se, therefore, of a judgment of divorce against either party, the descent of all the property is changed, and the death of either party after an appeal from such judgment of divorce ought not to bar those interested in the estate from reviewing the judgment of the court below.

In an action brought to have the contract of marriage declared a nullity, it is probable that, upon the death of either party after an appeal from a judgment declaring it valid or otherwise, the appeal would not abate absolutely, but this court would permit it to be revived and continued for the purpose of protecting those whose property interests were affected by such judgment. In this ease, the defendant sets out three grounds upon which he prays the court to declare the marriage of the plaintiff with him a nullity; and if it appeared, either from the pleadings in the case or otherwise, that the refusal of the court below to render a judgment declaring his marriage with the plaintiff null and void, affected him in his property rights, this court might be compelled to review the case even after the death of the plaintiff, and, if we found that the evidence clearly showed him entitled to that relief, direct the court below to enter such judgment. But we do not see how he can, in this case, be prejudiced by the refusal of the court to grant such relief after the death of his alleged wife; there are no issue of the alleged marriage, and if there were, it is possible they would be legitimized by the provisions of sec. 30, ch. Ill, B. S. 1858, and would inherit notwithstanding the marriage was declared void; but, the wife having died during his lifetime, all possibility of claim by or through her is gone; and it is not alleged by the plaintiff or defendant that since the alleged marriage of the plaintiff and defendant, the defendant bas contracted any other marriage, the validity of which depends upon the validity of his marriage with the plaintiff.

In no possible view of the case can we see that the appellant has now any interest in procuring a judgment declaring his marriage with the plaintiff a nullity.

As to so much of the judgment of the court below as directs the defendant to pay the several sums of money therein mentioned, we are of opinion that the appeal did not abate absolutely by the death of the respondent. It was, in effect, a judgment in her favor against the defendant for so much money, to enable her to pay her expenses of the litigation, and •especially to pay her attorneys.

The rule as to the effect of the death of a sole defendant pending an appeal, is stated by Wait, in his Practice, vol. 1, p. 155, as follows: “In all cases in which an appeal is pending at the time of the death of a sole defendant, the personal representatives of the deceased, having an interest in the judgment recovered, and in the appeal therefrom, are entitled, as a right, to be made parties to the appeal, whether the judgment appealed from was in favor of or against the deceased party whom they represent.” The rule would perhaps have been better stated, if the word “party ” had been substituted for the word “ defendant,” as there does not appear to'be any good reason why, if the plaintiff dies pending an appeal, his personal representatives, having an interest in the judgment and in the appeal, should not have the same right to be made parties to the appeal as the representatives of a deceased defendant. The cases do not, in fact, make any distinction between defendants and plaintiffs. They all turn upon the question as to the interest of the personal representatives in the judgment and in the appeal. Hastings v. McKinley, 8 How. Pr., 175 (in court of appeals); Miller v. Gunn, 7 id., 159 (in supreme court); Schuchardt v. Remiers, 28 id., 514 (in New York common pleas). In the first case above cited, after the appeal was perfected, tbe respondent, who had obtained judgment in the court below, died; in the second case, which was an action for slander, the plaintiff had obtained judgment, and the defendant appealed, and, pending the appeal, died. In the third case, the defendant had obtained a judgment for costs against the plaintiffs, and they appealed, and, pending the appeal, he died. It was held in all the cases, that the personal representatives of the deceased parties were entitled, upon application, to be made parties to the appeal. It is possible that if the plaintiff should appeal from a judgment entered against him in an action which did not survive either at common law or by statute, and should die pending his appeal, his personal representatives would not be entitled to be made parties to continue the-appeal, although they might have an interest in reviewing the judgment for costs.

The appeal in the case at bar being only from the part of tbe judgment of the court below which denied the relief prayed for by the defendant upon his counterclaims, and from the judgment for costs in favor of the respondent, she stands in this court upon this appeal as a defendant having judgment against the plaintiff for costs in the court below. If the personal representative of the respondent has an interest in the judgment for costs in her favor, then, under the rule, he is entitled to be made a party to this appeal upon her death, and is also entitled to have the court pass upon the question as to her right to judgment therefor.

The presumption is, that he has an interest. Upon the death of a married woman leaving an estate, administration must be granted in like manner as if she were unmarried, and died leaving an estate. If she have creditors, they are to be paid out of her estate before any distribution can be made to her heirs or next of kin. If it be urged that in this case it is to be presumed that, upon her death, all her estate would descend to and belong to her husband, still no presumption arises that she has no creditors who are to be paid before he is entitled to receive the estate. In fact, tbe form of the judgment shows that the money was awarded to her for the purpose of enabling her to pay her attorneys and others who were her creditors, and to whom she was justly indebted for services, and perhaps advances made to enable her to carry on her suit and her defense to appellant’s suit against her. In the case of Clark v. Clark, 6 Watts & S., 85, it was held, that where a wife brought her suit at common law for the recovery of alimony which had been awarded to her in an action for divorce a mensa et thoro, and died pending the action, her personal representatives might come in and prosecute the action for the benefit of her creditors; although the court held in the same case, that, as the relation of husband and wife still existed for many purposes, the arrears of the alimony belonged to the husband on the death of his wife; yet, as the husband had neither taken out letters of administration himself, nor applied to have the letters to the plaintiff vacated, he could not set up his right collaterally in his defense to the action; and, there appearing also to be debts which the wife had left unpaid, it allowed the plaintiff’s administrator to recover for the benefit of her creditors, adding: “ If, after the payment of the debts, anything should remain, the administrator will hold it for the use of the husband, on the principle above stated.” It was also held ¿in the case of Brown v. Ackroyd, 5 Ellis & Blackburn, 819, that a solicitor and proctor might recover for his services in an action brought by the wife against the husband for a divorce a mensa et thoro, on the ground of alleged cruelty, even though the wife died pending the action and before judgment. And it was put upon the ground that when such action was brought for sufficient cause, the services of such solicitor and proctor were necessaries, for which the husband was clearly liable. A similar decision was made in Wilson v. Ford, L. R., 3 Exch., 63. This case was decided as late as 1868. In Shepherd v. Mackoul, 3 Camp., 326, it was held that an attorney could recover against the husband for his services in behalf of the wife in exhibiting articles of the peace against him in a proper casé; and a like decision was made in this court in the case of Warner v. Heiden, 38 Wis., 517.

These cases all go upon the ground that the services are necessaries furnished to the wife.

There can be no doubt, therefore, that the attorney and others who furnished the respondent their services and money to carry on her defense and suit in this ease against her husband, are entitled to be paid out of the money awarded to her by the court below, in case the award was properly made; and therefore the personal representative of the deceased should be, and was properly, made a party to this appeal, so as to protect their interests in the recovery of this money from the apjjel-lant.

Without looking carefully into the voluminous record presented in this case, we are convinced that the judge of the court below did not abuse the discretion vested in him by the statute. It is almost a matter of course to award to the wife, when she is plaintiff in a divorce suit, money to carry on the same; and when she is defendant it is always awarded, unless, perhaps, in a case where it appears that she has a separate estate which is quite adequate to meet all such expenses. In the ecclesiastical court in England, by the rules of. the court, the expenses of the solicitor for the wife are required to be taxed and paid by the husband at each term during the pendency of the action. See Brown v. Ackroyd, above cited. In this state, the statute gives the judge before whom the action for divorce is pending, ample discretion in the matter. Sec. 16, ch. 111, R. S. 1858. In the case of Williams v. Williams, 29 Wis., 517, the court say: “ In divorce suits the court has plenary power over the whole subject of alimony and allowance, both before and after judgment. .... And the supreme court will not interfere with the determination of the circuit court, unless it is apparent that some of tbe conditions wbicb should have heen considered, have heen overlooked, to the injury of one of the parties.”

In the case at bar, it appears that the appellant is a man of large means; that the wife has no means of her own; that the litigation was protracted, expensive and bitter on both sides; that the only allowances made for suit money, previous to the entry of the final judgment, were $400. and upon that entry $600 more was allowed for attorney’s fees. Two hundred dollars has since been allowed in this court, which, it is said by the attorney for the respondent, was paid to her for her maintenance. Under these circumstances, we cannot say that the judge of the circuit court abused his discretion in making the allowances he’did to the respondent for attorney’s fees and expenses; hut as the allowances were quite liberal under all the facts of the case, we decline to make any further allowance for services in this court, other than the taxable costs.

According to our views, as above stated, the appeal has abated as to that part of it which appeals from so much of the judgment of the court below as denies the appellant the relief demanded in his answer; and so much of the judgment of the circuit court as awarded to the respondent the several sums of $600 and $128.78, is affirmed, with costs to the respondent.

By the Court.— So ordered.

RyaN, O. J., and LyoN, J., took no part.