In re Grbic

174 N.W. 546, 170 Wis. 201, 8 A.L.R. 325, 1919 Wisc. LEXIS 28

• Court: Wisconsin Supreme Court
• Decided: November 4, 1919
• Status: Published

Opinion

Rosenberrv, J.

The question raised by the motion to quash the writ is whether or not the circuit court for Milwaukee county had jurisdiction, upon the facts and circumstances shorvn by the affidavit and verified complaint of the plaintiff, to issue a writ of ne exeat. The statutory provisions relating to the writ of ne exeat are found in secs. 2784-2786. While sec. 2785, Stats., provides that iio writ of ne exeat shall be granted unless it satisfactorily appears to the court or the judge by the affidavit of the plaintiff or some indifferent witness that sufficient grounds exist therefor, the grounds upon which the writ may issue are not specified. As said in Davidor v. Rosenberg, 130 Wis. 22, 109 N. W. 925, resort must be had to the common law to ascertain the function of the writ as well as the grounds upon which it may issue. The nature of the writ and the grounds upon which it may issue are discussed in Davidor v. Rosenberg and the cases there cited, no reference being made to actions for divorce.

“It is an undoubted general principle of the law of divorce in this country, that the courts, either of law or equity, possess no powers except such as are conferred by statute; and that, to justify any act or proceeding in a case of - divorce, whether it be such as pertains to the ground or cause of action itself, to the process, pleadings or practice in it, or to the mode of enforcing the judgment or decree, authority therefor must be found in the statute, and cannot be looked for elsewhere, or otherwise asserted or exercised.” Barker v. Dayton, 28 Wis. 367.

Sec. 2348, Stats., provides:

“The circuit court has jurisdiction of all actions to affirm or to annul a marriage, or for a divorce from the bond of matrimony, or from bed and board, and authority to do all acts and things necessary and proper in such actions and to carry its orders and judgments into execution as hereinafter prescribed. All such actions shall be commenced and conducted and the orders and judgments therein enforced according to- the provisions of these statutes in respect to actions in courts of record, as far as applicable, except as provided in this chapter.”

In Damon v. Damon, 28 Wis. 510, decided the same term as Barker v. Dayton, it was held that a third party might be joined with the husband in an action for divorce, where the third party had accepted a conveyance of the husband’s property in an attempt to defraud the wife. The court says:

“It is urged that the power of the court in these divorce cases is limited; that it cannot exercise full equity powers, but only such as are conferred by the statute; and, inasmuch as the statute does not expressly provide that third parties may be made defendants in divorce suits, that therefore no person can be made a defendant in those actions other than a party to the marriage contract. We do not so understand the statute. We think that when the court is empowered to award alimony to the wife out of the husband’s estate; to adjudge to her property, or the value of it, that came to her husband by reason of their marriage; to sequester his personal estate, and the rents and profits of his real estate, to enforce compliance with its judgment; and to divide and distribute the whole estate between the parties,— that the power to bring before it as a party defendant in the same action any person who is attempting fraudulently to keep the estate over which the court has such absolute control, awa}r from the jurisdiction of the court and out of the reach of its judgment, must necessarily follow.” See Griffin v. Griffin, 47 N. Y. 134; Perry v. Perry, 2 Paige Ch. 501.

Under the power conferred upon the circuit court to enforce its judgments, as in other cases, it was held in Barker v. Dayton, supra, that the plaintiff could maintain a supplementary proceeding, it being a proceeding in the same action, although a substitute for a creditors’ bill under the old practice.

While recognizing the difficulties, in that it was impossible to name a specific sum as-being due, and the right to alimony being uncertain, Chancellor Kent allowed the writ in a divorce action where the defendant husband threatened to remove his property from the jurisdiction of the court. Denton v. Denton, 1 Johns. Ch. 364, second appeal, 441. See, also, Yule v. Yule, 10 N. J. Eq. 138; Prather v. Prather, 4 Desaus. Eq. (S. C.) 33, 118 Am. St. Rep. 993. We think the authority is conferred upon the circuit court by sec. 2348 to do all acts and things necessary and proper in such actions, and issue such writs as may be issued in respect to other actions for the purpose of making its orders and judgments effective, and that the court had jurisdiction, therefore, to allow the writ in this case.

The reasoning of the court in Damon v. Damon, 28 Wis. 510, applies fully to the facts in this case. If it were held that the court had no jurisdiction to issue the writ under the facts in this case, its judgment when rendered, excepting so far as .it affected the status of the parties, would be ineffective, and the plaintiff without remedy.

By the Court. — Motion to quash granted, and petitioner is remanded to the custody of the sheriff of Milwaukee county. Petitioner to pay the clerk’s fees.