Prochnow v. Northwestern Iron Co.

145 N.W. 1098, 156 Wis. 408, 1914 Wisc. LEXIS 118

• Court: Wisconsin Supreme Court
• Decided: March 17, 1914
• Status: Published

Opinions

KbewiN, J.

1. Counsel for appellants contend that tbe court should not have allowed tbe amendment setting up the statutes of limitation, nor tbe amendment setting up tbe answer in abatement as to plaintiff Matilda Prochnow, and argue tbe question under this bead to considerable extent in their brief. We are, however, precluded from considering tbe error assigned under this bead for the reason that tbe first order is not appealable. Sec. 3069, Stats., provides what orders may be carried by appeal- to the supreme court* and tbe order in question does not come within any provision of this statute.

Tbe answer in abatement set up facts to-the effect that tbe plaintiff Matilda Prochnow was not a proper party plaintiff, and upon tbe trial of this issue tbe court -ordered that tbe plea in abatement be sustained, and that tbe complaint, in so far as any cause of action or claim for damages was attempted to be stated therein in favor of 'the plaintiff Matilda Prochnow, -be dismissed, and that she be dismissed from said action as a party thereto, but without- prejudice to tbe right of tbe plaintiff Gustav Prochnow to proceed in tbe action as plaintiff. <■ This latter order is appealable, but tbe appeal from such order does not bring up for review tbe first order referred to. Gross C. Co. v. Milwaukee, 148 Wis. 72, 134 N. W. 139; Gorsegner v. Burnham, 142 Wis. 486, 125 N. W. 914; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851; Breed v. Ketchum, 51 Wis. 164, 7 N. ; Wis. R. E. Co. v. Milwaukee, 151 Wis. 198, 138 N. W. 642. It is clear from the statute referred to and the decisions of this court that the first order mentioned is not before us for review, hence its merits cannot be considered.

2. The issue on the answer in abatement was tried before the court and a bill of exceptions settled on appeal. The court below found on sufficient evidence that the plaintiff Matilda Prochnow never had any right, title, or interest in the real estate described in the complaint, except such right, title, or interest as she might have by virtue of being wife of the plaintiff Gustav Prochnow, and that said Matilda Prochj now had no separate estate in said real estate described or otherwise, and was in no way affected by the alleged nuisance referred to in the complaint. Upon these facts, supported by the evidence, it is clear that she was not a proper party plaintiff in this action. At common law the wife is not a proper party to an action for damages to her husband’s realty or personal property. Our statute, sec. 2345, does not make her a proper party in this action. It gives her the right to sue in her own name in actions relating to her separate property or business, or to sue for an injury to her person or character, or for the alienation and loss of the affection and society of her husband, and also in other respects mentioned in secs. 2343 and 2344, which do not touch the instant case. The case at bar does not come within any of the statutory provisions permitting a married woman to sue; nor does the fact that the real estate in question is the homestead of the plaintiff Gustav Prochnow confer any right upon the plaintiff Matilda Prochnow to join with her husband in this suit. Mash v. Bloom, 126 Wis. 385, 105 N. W. 831; Town v. Gensch, 101 Wis. 445, 76 N. W. 1096, 77 N. W. 893; Beranek v. Beranek, 113 Wis. 272, 89 N. W. 146. The ease of Hufnagel v. Mount Vernon, 49 Hun, 286, 1 N. Y. Supp. 787, is in point on the proposition under consideration to the effect that a wife is not a proper party plaintiff in an action by the husband to recover damages to real property by the alleged maintenance of a nuisance. This court has held that the wife is an improper party plaintiff with her husband in an action to set aside a conveyance of their homestead on the ground that the same was induced by fraud. Read v. Sang, 21 Wis. 678. The present action to recover damages for and to abate the nuisance is an action at law. Remington v. Foster, 42 Wis. 608. It is based on ownership of the property injured. Wood, Nuisances (3d ed.) § 495; Kavanagh v. Barter, 131 N. Y. 211, 30 N. E. 235.

The ownership and possession of the real estate being in the plaintiff Gustav Prochnow, the right of action was in him exclusively. Kavanagh v. Barter, supra; Hufnagel v. Mount Vernon, 49 Hun, 286, 1 N. Y. Supp. 787. We think it clear upon principle and authority that the wife was an improper party plaintiff in the present action, therefore the court below was right in sustaining the answer in abatement and dismissing the plaintiff Matilda Prochnow from the case. It is true there is a class of cases where the wife is a proper party where necessary in an action to protect her dower interest, but such cases have no bearing here. Madigan v. Walsh, 22 Wis. 501, holds that an inchoate right of dower is such an interest in land as will enable the wife to maintain an action to remove a cloud fraudulently attempted to be created upon it.

Counsel for appellant refers us to Hausmann Bros. Mfg. Co. v. Kempfert, 93 Wis. 587, 67 N. W. 1136, and Huntzicker v. Crocker, 135 Wis. 38, 115 N. W. 340. In the former ease it was simply held that the wife was a proper, if not a necessary, party in an action to foreclose a mechanic’s lien, even though the premises were not the homestead, and even though her inchoate right of dower could not be divested in such action. In the Huntzicleer Case it was held that an inchoate right of dower is such an incumbrance on land as will entitle, its owner to maintain an action to remove a cloud thereon under sec. 3186, Stats. It is obvious tbat neither of these cases reaches the question before us.

It is further contended that $500 or $600 of Matilda Prochnow’s money went into the land in question, hence she has an interest therein. This contention is without merit, even if it be true that she advanced money to her husband which money went into the property. The whole title to the property still remains in Gustav Prochnow, and upon the established facts in this case no trust results in favor of Matilda Prochnow. Friedrich v. Huth, 155 Wis. 196, 144 N. W. 202. It follows that the appeal must be dismissed as to the first order appealed from, and that the second order must be affirmed.

By the Court. — The appeal is dismissed as to the first order, and the second order appealed from is affirmed.

Vinje, J., dissents.