THE

Northwestern Reporter.

VOLUME XXV.

SUPREME COURT OF WISCONSIN.

MANNING V. HEADY.

Filed October 13, 1885.

WRIT AND PROCESs-Service by PUBLICATION-DIVORCE-WISCONSIN STATUTE. Where the affidavit for service by publication states that defendant is a non-resident of the state, but wholly fails to state that he has property within the state, or that the cause of action arose within the state, and the order of the court recites that it was granted upon reading the complaint in the action and the affidavit which had been filed in the office of the clerk of the circuit court, and it appeared to the satisfaction of the circuit judge from the complaint and affidavit that plaintiff had a cause of action, etc., and, as a matter of fact, the original complaint was not filed until after such order was made, the court acquires no jurisdiction of the defendant, and a judgment of divorce rendered on such defective service by publication is void.

Appeal from circuit court, Jefferson county.

Page & Cass, for respondent, Nancy Manning. Henry Heady, pro se. COLE, C. J. If the court never acquired jurisdiction of the defendant in the action, (McCune v. Manning,) the judgment in the case must be affirmed. For. aside from all questions of homestead rights, the decree of divorce transferred and vested the title to the 20 acres of land in dispute in the plaintiff; she is therefore in a position to assail the validity of that judgment and the sale under it, and is entitled to the relief granted, if it is void. The inquiry, then, is as to the validity of the judgment in the McCune suit. At the time of the commencement of that action, and for some time previously thereto, the defendant, Green Manning, was and had been a resident of the state of Iowa. Jurisdiction over him was attempted to be acquired by publication. The statute provides, where the defendant is a non-resident and has property within the state, or the cause of action arose within the state, that service of summons may be made by publication on obtaining an order therefor as therein prescribed. Rev. St. § 2639. The order must be made by the court or judge thereof upon an application based upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist, and that the plaintiff is unable with due diligence to make service of the summons upon the defendant in respect to whom the order is applied for. Section 2640. We have in the record the affidavit and complaint upon which the order of pubv.25N.w.no.1-1

lication was made. While the affidavit states that Green Manning was a non-resident of this state, and resided at Charles City, state of Iowa, it wholly fails to show that he had property within this state, or that the cause of action arose within this state. These essential facts must be shown to exist to authorize the granting of the order of publication. The order is dated April 27, 1880, and recites that it was granted upon reading the complaint in the action, and the affidavit of the plaintiff therein, which are filed in the office of "the clerk of the circuit court for Walworth county," and it appearing to the satisfaction of the circuit judge "from said complaint and affidavit" that the plaintiff has a cause of action, etc., the order was made. As a matter of fact the indorsement of the clerk upon the original complaint shows that it was not filed in his office until the thirteenth of September, 1880. It should have been filed before the order of publication was made. Cummings v. Tabor, 61 Wis. 185; S. C. 21 N. W. Rep. 72.

But the affidavit states no statutory ground for making the order, consequently jurisdiction over the defendant was not obtained. In view of the recitals in the order, there can be no presumption that there was other proof made of the existence of the required facts aside from what appeared in the affidavit and complaint. And since these do not show the existence of the necessary facts, the order of publication was unauthorized. It is said, however, that section 2641 makes the order presumptive proof of the existence of all facts required to exist, to authorize the same to be made, and conclusive in all collateral actions and proceedings. We think this section was not intended to apply to a case where the record itself shows that the order was made upon insufficient or defective proof. Here the record shows what proof was made, and we must look into it to see if it authorizes the order. This is a question as to the service of summons where the record shows that the necessary and proper proof of the existence of the required facts was not made; therefore jurisdiction by publication was never obtained. If the order had recited that it appeared to the satisfaction of the circuit judge that the defendant was a non-resident and had property within this state, there being nothing in the record to show what proof was made, the presumption would be that it was sufficient to authorize the order of publication. Storm v. Adams, 56 Wis. 137; S. C. 14 N. W. Rep. 69. But here the order contains no such recital, while the record shows that it was made upon an affidavit fatally defective. We, therefore, must hold that jurisdiction was not helped out by section 2641. It is true, the record shows that the summons and complaint were personally served upon Green Manning, in Iowa; but this service did not give the court jurisdiction over him, because there was no valid order of publication made. Weatherbee v. Weatherbee, 20 Wis. 499; Keeler v. Keeler, 24 Wis. 522. The judgment in the McCune Case, being void for want of jurisdiction over the defendant, it follows that no legal sale could be made under it.

The plaintiff was in possession of the 20 acres of land, and had the legal title by virtue of the judgment of divorce. She was entitled, therefore, to the relief granted. It is said that neither the evidence nor findings show that the defendant, Henry Heady, had any such interest in the sheriff's certificate or in the land, when this action was brought, as amounted to the setting up of a claim thereto, within the meaning of the statute. It is very clear that he did not, in his answer, disclaim all title to the land and certificate, and offer to give a release, as he should have done if he was not setting up some claim thereto. But really the sheriff's certificate was issued to him, and, although he assigned it to his father just before the suit was commenced, this assignment was kept secret from the plaintiff and her attorneys. Besides, the evidence shows beyond all controversy that the sheriff's certificate was entirely under his control all the time. The circuit court finds that the assignment was made by him to avoid the consequences of this action, which

he expected would soon be brought, and that conclusion is fully warranted by the evidence.

We think the judgment of the circuit court was correct and must be affirmed.

BEGG. ANDERSON and others.

APPEAL-FINDING EVIDENCE.

Filed October 13, 1885.

The finding of the jury in this case that the son, who was of the same name as his father, was the grantee in the special guardian's bond, is sustained by the evidence, and the judgment of lower court should be affirmed.

Appeal from circuit court, Waukesha county.

D. H. Sumner, for appellant, James Begg. J. V. V. Platto, A. Cook, and P. H. Carney, for respondent, Ann Adell Anderson and others.

COLE, C. J. The trial court submitted to the jury the question whether James Begg, the father, or James Begg, the son, was the grantee in the special guardian's deed, dated January 6, 1866, and the jury in effect found that the son was the grantee. The learned counsel for the plaintiff insists that there is not a scintilla of proof to sustain that finding. Therefore the circuit court should have granted the motion to set the verdict aside on the ground that it was wholly unsupported by the evidence. If this position of counsel is sustained by the record, then surely the verdict should not stand. But we think counsel is mistaken in saying that there is no proof in the case which supports the verdict. On the contrary, it seems to us there are many facts and circumstances appearing in the evidence which sustain the finding of the jury.

This is not a question as to the preponderance of testimony, nor even whether we would have reached the same conclusion upon it that the jury did, but whether the verdict is so clearly against the weight of testimony and the probabilities of the transaction that a court would be justified in setting it aside. Now, it is undeniable that the son gave to the special guardian his notes and a mortgage on the entire tract for the consideration named in this deed. That certainly is one circumstance which fairly tends to support the conclusion that the son was the grantee in that conveyance. Again, the son went into possession of the entire tract, cultivated and improved it, paid the taxes upon it, and treated it as his own property for several years. In the report of sale made by the special guardian to the probate court such guardian stated that he had entered into an agreement with James Begg, Jr., subject to the approval of that court, to sell the interest of his ward, Charles M. Halsey, to him upon the conditions named. It is also indisputable that the father presented a claim against his son's estate containing an item for $1,300, cash paid to the special guardian, January 6, 1866, at the request of his son.

These facts, and some others of less cogency tending to show that the son was the grantee in the deed, were before the jury for their consideration. It is certainly true that there was much countervailing testimony, but it is impossible to say that this evidence so strongly preponderates against the verdict as to warrant the court in disturbing it. Fair and reasonable men, considering and weighing all the evidence given on the trial, might arrive at different conclusions upon it. It may be true, as claimed by counsel, that the father paid most of the consideration for the entire tract of land. This fact is not entitled to any controlling weight in determining the question as to who was the grantee of the guardian's deed. The father may have intended this money thus paid as a gift to his son at the time. The evidence does not show that the father seriously asserted any claim to any portion of this land until after the death of his son. It is a fair inference from the testimony that

he was willing to aid his son in procuring a farm, and this friendly disposition on his part affords a reasonable explanation of his conduct in consenting that the title should be conveyed to his son by this guardian's deed. At all events the jury have found, upon sufficient evidence, that the son was the grantee in that deed, and this conclusion disposes of the case, even though the father paid most of the purchase money by taking up his son's notes. Without dwelling longer upon the testimony, we think the judgment of the circuit court must be aflirmed. It is so ordered.

LEAVITT, Adm'x, etc., v. CHICAGO & N. W. RY. Co.

Filed October 13, 1885.

NEGLIGENCE-WHEN QUESTION OF LAW.

Whether a party in a given case is chargeable with negligence is ordinarily for a jury to decide, under proper instruction from the court as to what constitutes negligence; but in a clear case, when the facts are undisputed or free from doubt, where only one conclusion can be fairly reached upon the evidence, the court may decide, as a matter of law, that negligence has or has not been established.

Appeal from circuit court, Walworth county.

J. F. Lyon and Quarles, Spence & Richards, for respondent, Eva Leavitt, Adm'x, etc. Jenkins, Winkler & Smith, for appellant, Chicago & N. W. Ry. Co.

COLE, C. J. It is apparent that the learned circuit court was dissatisfied with his decision on the motion for a nonsuit. It is said the nonsuit was improperly set aside, because (1) no actionable negligence on the part of the servants of the defendant was proven on the trial; and (2) because the evidence showed that the deceased himself was guilty of negligence which contributed to the injury. In respect to these propositions, if we could say that there was not sufficient evidence to warrant a jury in finding that the servants of the defendant were guilty of negligence in the management of the train, or in any other matter; or that the evidence of carelessness on the part of the deceased was so clear and free from doubt as to justify us in deciding, as a matter of law, that he was guilty of contributory negligence, then it would follow that the nonsuit should stand. But if there were facts and circumstances appearing in the evidence which fairly tended to show negligence on the part of the defendant, and to rebut any inference of carelessness on the part of the deceased, then both questions should be left to a jury. It has often been said, by this and other courts, that the question whether a party in a given case is chargeable with negligence is ordinarily one for a jury to decide, under proper instructions from the court as to what constitutes negligence. In a clear case, where the facts are undisputed or free from doubt, where only one conclusion can fairly be reached upon the evidence, the court may decide, as a matter of law, that negligence has or has not been established. "When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of those conclusions has been drawn by a jury. The inferences to be drawn from the evidence must either be certain and incontrovertible, or they cannot be decided upon by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ." COOLEY, C. J., in Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 123.

As there must be a new trial in this case it would be improper for us to indicate more distinctly our views as to what facts the evidence tended to establish. We can only say it was not a case where the court should decide, as a matter of law, whether the deceased was guilty of negligence when he was struck by the train, or whether the defendant had not been guilty of

negligence in failing to keep its cattle-guard in suitable condition, or in the management of its train when the accident happened. In his opinion, setting aside the nonsuit, the learned circuit judge stated that his attention on the motion was directed solely to the question as to whether the deceased was justified in pursuing the course he did simply to save the cattle from injury, and he thought the effort to save property from destruction did not justify a reckless and negligent exposure of life. But the learned judge added that, it was the duty of the deceased to make reasonable endeavors to save human life on the train, and that it was a proper question for the jury to determine whether, in attempting to discharge this manifest duty, the deceased was exercising due and proper care under the circumstances. It seems to us that the care exercised by the deceased at the time of the injury, as well as the negligence of the defendant, were questions for the jury upon all the evidence. That being so, the order setting aside the nonsuit was correct, and must be affirmed. It is so ordered.

See Lincoln v. Gillilan, 24 N. W. Rep. 44, and note 447.

CRUGOM v. CRUGOM.

Filed October 13, 1885.

DIVORCE-ALIMONY AND SUPPORT OF CHILD- POWER OF COURT TO GRANT WHEN NO PROVISION MADE IN ORIGINAL JUDGMENT-WISCONSIN STATUTE.

The court has power to allow alimony to a wife, but not to provide for the support of a child begotten before marriage, and whose paternity the husband denies, subsequent to a judgment of divorce, in which no provision was made in either

case.

Appeal from circuit court, Milwaukee county.

Chapin, Dey & Friend, for appellant, Joseph Crugom. Cotzhausen, Sylvester, Scheiber & Sloan, for respondent, Sarah A. Crugom.

COLE, C. J. The question to be determined on this appeal is fairly stated in the brief of counsel to be whether the court has power to allow alimony to the wife and provide for the support of a child subsequent to the judgment of divorce, where no provision was made in either case in such judgment. The appellant obtained a judgment of divorce from the bond of matrimony, on the ground of desertion, in June, 1879. The respondent was served with process, entered an appearance in the action, and answered. Judgment was finally taken against her, by default, either through some misunderstanding between her and her counsel as to when the cause would be tried, or on account of her not having means to make a defense. She states in her petition that she was not aware a divorce had been granted until the month of October, 1881, when she engaged counsel to take steps to secure for her proper alimony. But her application to the court for that purpose was not actually made until November, 1884. The important question, therefore, in the case is whether, under the circumstances, the court had power to modify its judgment and make an allowance for her support. The question is a new one in this court, and but little aid can be derived from the decision in other states owing to the great dissimilarity in their statutes regulating the subject of divorce and giving alimony. The question must depend for its solution upon the construction of our own statute and the decisions which have been made under it. If the judgment of divorce had allotted alimony to the wife, or provided for the support of the child, it is clear the judgment in that regard might be subsequently modified or changed. This is the express language of the statute, (section 2369,) and such is the doctrine of our adjudications where the question has arisen. Helden v. Helden, 7 Wis. 296; S. C. 11 Wis. 554; Bacon v. Bacon, 31 Wis. 594; Campbell v. Campbell, 37 Wis. 207; Hopkins