Kunze v. Kunze

Wisconsin Supreme Court

Kunze v. Kunze

68 N.W. 391, 94 Wis. 54, 1896 Wisc. LEXIS 114

CourtWisconsin Supreme Court

DecidedSeptember 22, 1896

StatusPublished

Cited by10 cases

This text of 68 N.W. 391 (Kunze v. Kunze) 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

Kunze v. Kunze, 68 N.W. 391, 94 Wis. 54, 1896 Wisc. LEXIS 114 (Wis. 1896).

Pincite

Opinion

Winslow, J.

This is an action brought to recover alimony adjudged to the plaintiff in a divorce action heretofore brought in Illinois. It appears by the complaint that the court in which the divorce action was brought — i. e. the circuit court of Cook county, Illinois — was a court of general jurisdiction, as its name indicates; hence it was unnecessary to allege any jurisdictional facts. Jarvis v. Robinson, 21 Wis. 523. The allegation that the judgment was rendered in that court, and that it was afterwards duly amended, are sufficient in the first instance. Erom these facts jurisdiction is presumed. If in fact there was any want of jurisdiction, it is a fact to be set up by answer. Jarvis v. Robinson, supra.

It is further alleged in the complaint by apt averments that, by the laws of Illinois, the amended decree for the payment of alimony has the force and effect within that state of a judgment at law for the payment of money. If such be its force and effect, we see no reason why an action at law for its recovery may not be maintained in this state. It is quite well established that an action at law lies on a final decree of a court of equity of another state for the payment [58]*58of a specific sum of money. Moore v. Adie's Adm'r, 18 Ohio, 430; Pennington v. Gibson, 16 How. 65; Allen v. Allen, 100 Mass. 373; Black, Judgments, § 962, and cases cited. If a divorce judgment decree the payment of a specific sum absolutely as alimony, and if (as alleged in this case) such decree has the effect in that state of a judgment at law for the payment of money, there seems no reason why such a decree may not be enforced by action at law in another state. Dow v. Blake, 148 Ill. 76; Barber v. Barber, 21 How. 582; Allen v. Allen, supra. This doctrine is not contrary to the principle stated in Barber v. Barber, 2 Pin. 297, where an action at law was held not to lie to enforce payment of certain instalments of a New York decree for alimony. That ruling was based expressly on the fact that, under the law of New York, the decree was temporary only, and not an absolute decree for the payment of a sum certain, and had not the effect of a judgment at law. Nor is there anything in the decision of the case of Guenther v. Jacobs, 44 Wis. 354, which conflicts with the position here taken.

By the Court.— Order reversed, and action remanded for further proceedings according to law.

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Winslow, J.

This is an action brought to recover alimony adjudged to the plaintiff in a divorce action heretofore brought in Illinois. It appears by the complaint that the court in which the divorce action was brought — i. e. the circuit court of Cook county, Illinois — was a court of general jurisdiction, as its name indicates; hence it was unnecessary to allege any jurisdictional facts. Jarvis v. Robinson, 21 Wis. 523. The allegation that the judgment was rendered in that court, and that it was afterwards duly amended, are sufficient in the first instance. Erom these facts jurisdiction is presumed. If in fact there was any want of jurisdiction, it is a fact to be set up by answer. Jarvis v. Robinson, supra.

It is further alleged in the complaint by apt averments that, by the laws of Illinois, the amended decree for the payment of alimony has the force and effect within that state of a judgment at law for the payment of money. If such be its force and effect, we see no reason why an action at law for its recovery may not be maintained in this state. It is quite well established that an action at law lies on a final decree of a court of equity of another state for the payment [58]*58of a specific sum of money. Moore v. Adie's Adm'r, 18 Ohio, 430; Pennington v. Gibson, 16 How. 65; Allen v. Allen, 100 Mass. 373; Black, Judgments, § 962, and cases cited. If a divorce judgment decree the payment of a specific sum absolutely as alimony, and if (as alleged in this case) such decree has the effect in that state of a judgment at law for the payment of money, there seems no reason why such a decree may not be enforced by action at law in another state. Dow v. Blake, 148 Ill. 76; Barber v. Barber, 21 How. 582; Allen v. Allen, supra. This doctrine is not contrary to the principle stated in Barber v. Barber, 2 Pin. 297, where an action at law was held not to lie to enforce payment of certain instalments of a New York decree for alimony. That ruling was based expressly on the fact that, under the law of New York, the decree was temporary only, and not an absolute decree for the payment of a sum certain, and had not the effect of a judgment at law. Nor is there anything in the decision of the case of Guenther v. Jacobs, 44 Wis. 354, which conflicts with the position here taken.

By the Court.— Order reversed, and action remanded for further proceedings according to law.

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68 N.W. 391, 94 Wis. 54, 1896 Wisc. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kunze-v-kunze-wis-1896.

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