State ex rel. Child v. Smith

19 Wis. 531

• Court: Wisconsin Supreme Court
• Decided: June 15, 1865
• Status: Published

Opinion

By -the Court,

DlXON, C. J.

Upon every divorce from the bond of matrimony, for any cause excepting that of adultery committed by the wife, alimony may be allowed. E. S., ch. Ill', sec. 24. Hence it may be allowedin the action commenced by the relator in the county court. Eor the purpose of determining the amount of such allowance, it becomes necessary for the court to examine and determine the amount and value of the property owned by the husband. We think, in order to confer jurisdiction upon the county court, that the amount and value of such property should be averred in the complaint, and that it does not exceed $20,000. With this averment we are of opinion that the court has jurisdiction to hear and determine such actions under the provisions of section two of chapter 862, Laws of 1860. But as the complaint, a copy of which is annexed to the affidavit, contains no such averment, the peremptory writ of mandamus must be denied.

It must also be denied on another ground. The affidavit shows only that the county court refused to proceed with the trial. To lay the foundation for such an application, it should appear that the court refused to take any action. Eor though the court refused to try the case for want of jurisdiction, it still might not refuse to dismiss it for the same reason, and if dismissed the relator would have his remedy by appeal from the judgment or order of dismissal. •

Application denied.