author: Wilkie, J.

text:
    Estate of Tantillo: Mittelstadt, Trustee in Bankruptcy, Appellant, v. Tantillo and another, Respondents.

      April 2

    April 28, 1964.

      For the appellant there was a brief and oral argument by Russell J. Mittelstadt of Madison.
    For the respondents there was a brief and oral argument by A. E. Simonson of Madison. Laurence W. Hall of Madison also argued.
   Wilkie, J.

The only question before us in this case is whether the county court applied the proper test to determine the validity of the challenged assignments. The record will not support a conclusion that the assignments are tainted with legal fraud or fraud in fact under the Uniform Fraudulent Conveyance Act, ch. 242, Stats. Indeed, the trustee in bankruptcy does not argue that it will.

He argues that he was not required to show fraud in the transaction but only “vitiating circumstances,” relying on Hofmeister v. Hunter (1939), 230 Wis. 81, 283 N. W. 330. That case involved the assignment of an expectancy. It was decided against the background of the historic reluctance of courts to enforce such assignments. See Graef v. Kanouse (1931), 205 Wis. 597, 238 N. W. 377.

But the assignment as it affects the bankrupt’s interest in his father’s estate is not before us. Here the bankrupt survived his mother. This was all that was necessary in order for his interest to vest under Article Sixth of her will. Vested or contingent, a future interest, as distinguished from a mere expectancy, is assignable under secs. 230.35 and 231.19, Stats. Meyer v. Reif (1935), 217 Wis. 11, 258 N. W. 391. See also Restatement, 2 Property, p. 601, sec. 163.

By the Court. — Judgment affirmed.

Hallows, J., dissents.


source: Caselaw Access Project

author: Currie, C. J.

license: Public Domain

text:
    Riehl and another, Appellants, v. De Quaine and another, Respondents.

      April 2

    April 28, 1964.

      For the appellants there were briefs by Bittner, Petit jean & Greenwood of Green Bay, and oral argument by Robert L. Bittner.

    For the respondents there was a brief by Kaftan, Kaftan & Kaftan of Green Bay, and oral argument by Fred F. Kaftan.

   Currie, C. J.

Plaintiffs raise these two contentions on this appeal:

(1) Mr. Riehl was confronted with an emergency and should be absolved of any negligence as a matter of law.

(2) Mrs. Riehl is entitled to a new trial in the interest of justice because the damages are inadequate.

Emergency Issue.

The accident giving rise to Mrs, Riehl’s injuries occurred at about 8:30 p. m. on Walnut street, which runs in an easterly and westerly direction between the intersections of such street with Jefferson and Adams streets. The Riehl car was traveling westerly and the De Quaine car easterly. Mrs. Riehl was sitting in the right front seat and another couple who were passengers, in the rear seat. De Quaine, at the time, was sixteen years old, having procured his driver’s license about a month before the accident. He was alone in his automobile.

Prior to the accident the Riehl car had come to a full stop at the Jefferson street intersection and the De Quaine car had done likewise at the Adams street intersection. Both stops were made because the stop-and-go lights at these two intersections were on red. The two stop-and-go lights turned green at about the same time. Walnut street has four traffic lanes, two in each direction. Both cars as they approached each other were in their respective inner traffic lanes next to the center line. The Riehl car did so through choice while the De Quaine car was compelled to use the inner lane because another car was proceeding approximately abreast of it in the outer eastbound lane.

The De Quaine car swerved over the center line and its left front struck the left front of the Riehl car a glancing blow and then scraped along its left side. The point of impact was approximately three feet to the north of the center line. Riehl testified he was traveling approximately 15 miles per hour when he saw the De Quaine car start to cross the center line. Riehl applied his brakes and stated he had brought his car to a stop just prior to impact. De Quaine testified he was traveling 15 miles per hour and had just shifted into second gear when the car to his right made contact with his front bumper and “cut me off in front.” De Quaine “moved over a little,” meaning he swerved to his left, and the accident happened. The import of his testimony was that he was forced across the center line by the car on his right. He estimated that about half of his car was on the left side of the center line at time of impact. When asked, if he had made an effort to get back on his own side of the street, De Quaine replied, “. . . he was on my right; I had no time to move back before the impact.”

If both vehicles were traveling at a speed of 15 miles per hour at the moment when the De Quaine car crossed the center line, their combined speed was 44 feet per second. Therefore, if the Riehl automobile was then but 50 feet distant, Riehl would have only slightly in excess of one second within which to take some action to avoid a collision if both vehicles had continued at the same speed. Allowing time for the bringing of the Riehl car to a stop would not likely prolong such intervening period to a maximum of two seconds. In Havens v. Havens (1954), 266 Wis. 282, 63 N. W. (2d) 86, 47 A. L. R. (2d) 1, a driver in a somewhat-analogous position to Riehl was held to be confronted with an emergency as a matter of law where the interval afforded for action was a maximum of three and a half seconds. More recently a maximum period of three seconds within which to react to an invasion of a driver’s lane of travel by another vehicle was held to create an emergency. Schumacher v. Klabunde (1963), 19 Wis. (2d) 83, 119 N. W. (2d) 457. See also Papacosta v. Papacosta (1957), 2 Wis. (2d) 175, 85 N. W. (2d) 790.

Defendants attach some significance to Riehl’s testimony that when he first saw De Quaine invade the north half of the street Riehl thought De Quaine would get back to his own side, but “when I seen that he was not going to get out of my way I stopped.” We do not deem that this evidence is sufficient to warrant the inference that Riehl was afforded such length of time in which to act as would make the emergency rule inapplicable. Defendants urge that Riehl should have turned his vehicle to the right in an attempt to avoid a collision instead of proceeding straight ahead and applying his brakes. The answer to this argument is the statement made in Klas v. Fenske (1946), 248 Wis. 534, 546, 22 N. W. (2d) 596:

“It is the well-settled law of this state that an automobile driver who, by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice(Emphasis supplied.)

Defendants contend, because the point of impact disclosed that Riehl had traversed approximately two thirds the distance from Jefferson to Adams streets and De Quaine but one third of such distance, this establishes Riehl was traveling twice as fast as De Quaine. While the stop-and-go lights at both intersections may have been activated from red to green at the same instant, there is still the possibility that Riehl may have started forward before De Quaine. We find nothing in the instant record which would support a finding of illegal speed on the part of Riehl.

Defendants further argue that the jury may have predicated their finding of causal negligence against Riehl on the fact that he drove in the inner of the two westbound traffic lanes, two feet from the center line, when the outer traffic lane was open to his use. He was entitled to use either of the two lanes and it was not negligent for him to drive as he did in the inner westbound traffic lane until such time as he perceived the De Quaine car invading his lane.

Lastly, defendants urge that, if Riehl was confronted with an emergency as a matter of law, so was De Quaine. This argument assumes that the jury must accept as a verity De Quaine’s testimony that the car to his right forced him over the center line in order to avoid a collision with that vehicle. Riehl testified that, while he saw the other car to the right of the De Quaine car, he did not observe such car turn toward the latter. De Quaine testified that there was contact made by this other car and his front bumper and that he showed a police officer paint on his bumper when this occurred. The police officer denied observing any paint on the bumper of De Quaine’s car. We conclude that this was not a situation where the jury was compelled to accept De Quaine’s testimony as a verity.

We determine that Riehl was confronted with an emergency as a matter of law, and, therefore, the jury’s finding of causal negligence on his part is not supported by the evidence.

Damage Issue.

The physical injuries received by Mrs. Riehl in the accident were moderate in nature and cleared up in a relatively short time. It is plaintiff’s contention, however, that she suffers from an incapacitating compensation neurosis, a type of traumatic neurosis, which is permanent in nature, and was caused by the accident. This court in Heindel v. Wisconsin Traction, Light, Heat & Power Co. (1919), 169 Wis. 181, 171 N. W. 938, and Landrath v. Allstate Ins. Co. (1951), 259 Wis. 248, 48 N. W. (2d) 485, assumed without expressly deciding that traumatic neurosis may be a proper element of damages in an automobile accident case. In Johnson v. Industrial Comm. (1958), 5 Wis. (2d) 584, 93 N. W. (2d) 439, it was expressly held that traumatic neurosis is compensable under our Workmen’s Compensation Act. Application of the rationale of that holding would require that it also constitute a proper element of damage in personal-injury actions.

We are confident that a great majority of the bench and bar have rightly assumed that damages for traumatic neurosis, when associated with physical injury, are recoverable in personal-injury actions in Wisconsin. Our holding in the recent case of McMahon v. Bergeson (1960), 9 Wis. (2d) 256, 101 N. W. (2d) 63, also clearly implied that this was the law. The point in that case upon which the majority and minority divided was whether the impact of the accident had triggered plaintiff’s neurosis. The majority held that the impact did not, but defendant driver’s tortious conduct had placed plaintiff in a position where a subsequent event did trigger it, and, because of this factor, there could be no recovery for the neurosis, which would not have been produced in a normal individual, absent a showing that defendant driver knew of such susceptibility. In at least one instance it has been mistakenly assumed that the majority opinion in McMahon would permit no recovery for traumatic neurosis in automobile negligence cases if plaintiff was more susceptible to neurosis than the normal individual. Campbell, Law Governing Automobile Accidents, 1962 Wisconsin Law Review, 240, 273-279. We disavow such a conclusion. The McMahon holding is not to be extended beyond the peculiar and rather bizarre facts there presented.

We turn now to the pertinent evidence bearing on Mrs. Riehl’s damages for personal injury and loss of earnings. She was fifty years of age at the time the accident occurred. She had been employed for twenty-five years in a clothing factory and was then earning $1.50 per hour. After the accident she was taken to the hospital and there examined by Dr. Lynn, her attending physician. Her immediate complaint was pain in the left elbow, left knee, left shoulder, neck, and upper abdomen. X rays were negative. Objectively her injuries were multiple abrasions and contusions, and this was Dr. Lynn’s diagnosis.

Because, after these abrasions and contusions had been successfully treated and all objective signs of injury had disappeared, Mrs. Riehl still claimed to be incapacitated, Dr. Lynn referred her to a neurosurgeon on February 1, 1961, but he “made no significant findings.” Dr. Lynn then referred her to Dr. Caffrey, a psychiatrist, who examined and treated her. He last saw her a few days before trial.

Dr. Caffrey testified as follows: His “impression” of Mrs. Riehl’s condition was “psycho-neurotic anxiety reaction with a traumatic neurosis, compensation neurosis, in a narcissistic immature individual. ... In summary, I feel that this female found herself for the first time in a ‘being taken care of role’ and liked it. She attributes all of her difficulties, both physical and mental, to the accident. She is a poor candidate for psychotherapy as long as this case is pending.” She is concerned about her gallbladder trouble and fears it may turn into cancer although she has had gallstones for ten years. She also is fearful of an operation and at times thinks suicide is the only solution. In his opinion her psychoneurotic depression has incapacitated her from work, it is permanent, and is causally connected to the accident of April 2, 1960. However, at no time did Mrs. Riehl ever express to Dr. Caffrey any anxiety over physical injuries received in the accident, and she was not suffering from any physical injuries when he first saw her ten months after the accident.

Dr. Lynn, who is a specialist in general and chest surgery and not a psychiatrist, testified that in his opinion the accident “did aggravate a pre-existing nervous state, if it existed, or produced an anxiety-depressive reaction.”

Dr. Quade, a specialist in neurological surgery, examined Mrs. Riehl for defendants on April 9, 1962, and testified as a medical expert as follows: He made a complete examination including the taking of X rays and performing an electroencephalogram. Both the X rays and electroencephalogram were normal. His diagnosis was: (1) Central nervous system objectively normal; (2) subjective nervousness, and (3) psychoneurosis. It is his opinion that the psychoneurosis found in Mrs. Riehl is not traumatic in nature. Her complaints are psychiatrically that of a neurosis rather than having any specific relationship to the accident. According to Dr. Quade, Mrs. Riehl attributes all of her conditions to this accident because she is searching for a reason to justify their existence, i.e., to find a scapegoat. In Dr. Quade’s opinion this is the typical pattern in this sort of situation.

In October, 1961, about eighteen months after the accident, Mrs. Riehl was confined to a hospital under Dr. Lynn’s care. The hospital records disclose that this hospitalization was for treatment for coronary arteriosclerosis with myocardial ischemia, gallbladder trouble, and multiple rheumatic pains. No mention is made in the hospital records of any complaints arising from the accident.

In view of the direct conflict in medical testimony as to whether Mrs. Riehl’s neurosis is attributable to the accident, the jury were entitled to find either that it was, or was not, caused by the accident. It is apparent from the award of $350 for loss of earnings and $500 for personal injuries that the jury concluded that the neurosis was not caused by the accident. These awards are not inadequate if the element of neurosis is eliminated.

Counsel for plaintiffs argue that Dr. Caffrey’s expert testimony as a psychiatrist should carry more weight than Dr. Quade’s expert testimony as a neurosurgeon. The law, however, does not recognize any gradation of experts based on specialized training or practice. So long as a physician qualifies as an expert the weight to be accorded his testimony is for the jury. Morrill v. Komasinski (1950), 256 Wis. 417, 41 N. W. (2d) 620.

If the element of the neurosis is eliminated from the alleged injuries sustained by Mrs. Riehl, the awards made by the jury for her loss of earnings and personal injuries were not inadequate. We are not persuaded that this is a case where we should exercise our discretionary power under sec. 251.09, Stats., and order a new trial on the damage issues in the interest of justice.

Disposition of the Appeal.

Because of our determination that Mr. Riehl was free from negligence as a matter of law the judgment must be modified so as to award to plaintiffs the full amounts of damages fixed by the jury. As so modified the judgment of Armilia Riehl will be for $850 damages, together with costs and disbursements, and Marvin F. Riehl’s judgment will be $650 for damages, together with costs and disbursements.

By the Court.- — -The judgment is modified as provided in the last paragraph of the opinion and, as so modified, is affirmed. Appellants shall be entitled to tax costs on this appeal.


author: Fairchild, J.

text:
    Amalgamated Association of Street Electric Railway & Motor Coach Employees of America, Division 998, Appellant, v. Danielson, Respondent.

      April 2

    April 28, 1964.

      For the appellant there was a brief and oral argument by Jack A. Berland of Milwaukee.

      For the respondent there was a brief by Quarles, Herriott & Clemons, attorneys, and Laurence E. Gooding, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Gooding.

   Fairchild, J.

It is undisputed that the defendant received $200 which the union paid under a mistake of fact. It seems evident that at the time the officers of the local union made the second $200 payment, they had forgotten having made the earlier payment. A party who has expended money by mistake of fact may ordinarily recover such sum in an action for money had and received. As stated in 40 Am. Jur., Payment, p. 849, sec. 197:

“The knowledge of the facts which precludes the recovery of money paid means a knowledge existing in the mind at the time of payment, and the general rule is that a payment made under a mistake of fact caused by forgetfulness may be recovered, where the person to whom the payment is made is not entitled thereto and cannot in good conscience retain it. Thus, a payment made through forgetfulness of the fact that the amount has already been paid is a payment under a mistake of fact, and may be recovered, for a person so paying has done an act he did not intend to do, and did not know or believe he was doing, and the error, no matter whether arising from forgetfulness or otherwise, destroys the whole basis of the agreement and the parties are restored to their original condition and right.”

Although an action for money had and received is an action at law, it is governed by equitable principles. “[T]he defendant may rely upon any defense which shows that in equity and good conscience the plaintiff is not entitled to recover in whole or in part.” As stated by the Restatement, Restitution, p. 284, sec. 69 (1):

“The right of a person to restitution from another because of a benefit received because of mistake is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.”
“The rule that money paid under a mistake of fact may be recovered back does not apply where the payment has caused such a change in the position of the other party that it would be unjust to require him to refund. Thus, where the plaintiff alone is at fault, or his fault is greater than that of the defendant, then the cases seem to agree that alteration of position of the defendant is a defense to an action for recovery of the money by the plaintiff, and, as a general rule, in cases where the plaintiff and the defendant are equally to blame for the mistake under which the money was paid, or equally innocent in respect thereto, an alteration of position on the part of the payee is held to prevent liability in an action for recovery.”

If defendant paid her father’s debts by reason of having received $200 which she believed she had a right to retain, such payment constituted a change of circumstances which would make it inequitable to require her to make restitution. The demurrer ore tenus was in effect an objection to the admission of evidence on the defense of change of circumstances. It was properly overruled.

The absence of any indication of the grounds for the county court’s decision creates a difficult situation on review.

The record is sufficient to sustain findings that defendant honestly believed, after receipt of the money, that she was entitled to keep it, and paid the $50 hospital bill on December 24, 1961, in reliance thereon. We shall assume the county court made such findings since they will, at least partially, support the judgment.

' However, the other payments were made before she received the $200. Defendant cannot be said to have máde those payments in reliance on her right to an additional sum from the union. Thus the union was entitled to judgment for $150 with costs.

By the Court. — Judgment reversed, and cause remanded for entry of judgment in favor of plaintiff for $150 together with costs.

        Dairyman’s State Bank v. Tessman (1962), 16 Wis. (2d) 314, 317, 318, 114 N. W. (2d) 460.

        Marinette County v. Schmitt (1946), 248 Wis. 308, 311, 21 N. W. (2d) 717, 22 N. W. (2d) 151, quoting 19 Am. Jur., Equity, p. 168, sec. 195.

       See also 40 Am. Jur., Payment, pp. 852, 853, sec. 201.

       40 Am. Jur., Payment, p. 852, sec. 201.

       See Note, 1947 Wisconsin Law Review, 426.

       See Oosterwyk v. Corrigan (1963), 19 Wis. (2d) 464, 473, 474, 120 N. W. (2d) 620; Oremus v. Wynhoff (1963), 20 Wis. (2d) 635, 643, 644, 123 N. W. (2d) 441.


author: Hallows, J.

text:
    Travelers Insurance Company, Plaintiff, v. Fidelity & Casualty Company of New York, Defendant: Ohland, Defendant and Respondent: Burlington National Bank, Impleaded Defendant and Appellant.

      April 2

    April 28, 1964.

      For the appellant there was a brief by JVickhem & Con-signy of Janesville, and Ruzicka, Fulton & Lloyd of Burlington, attorneys, and Wickham, Borgelt, Skogstad & Powell, and Kurt H. Frauen and Robert C. Watson of counsel, all of Milwaukee, and oral argument by Mr, Frauen.

    For the respondent there was a brief by Garrigan, Keith-ley, O’Neal, Dobson & Elliott and Donald L. Dobson, all of Beloit, and oral argument by Jerome Elliott.

   Hallows, J.

Whether or not the issue is raised by counsel, this court must take notice of any matter which impinges its jurisdiction on appeal and will dismiss the appeal sua sponte if the order of the trial court is not appealable. In such cases we lack the necessary jurisdiction to decide the appeal.

The appellant contends the court’s order sustaining the demurrer but granting leave to amend affected a substantial right of the bank since the statute of limitations had then run on the cause of action and also the order regardless of its form in effect overruled its demurrer by allowing an amendment of the pleadings. Recourse is thus had to sec. 274.33, Stats., governing appealable orders. By sub. (1) of this section, an order may be appealed if it affects a substantial right and in effect determines the action and prevents a judgment from which an appeal might be taken and by sub. (3) an order which sustains or overrules a demurrer is appealable. If the part of the instant order appealed from affects a substantial right of the appellant, it did not determine the action for the merits are still'to be tried or prevent a judgment from which an appeal might be taken — at least not a judgment from which the appellant could appeal.

We do not agree the order sustaining the demurrer with leave to plead over or amend the pleading constitutes in substance an order overruling the appellant’s demurrer and thus adverse so as to permit it to appeal the order under sec. 274.33 (3), Stats. The sustaining of a demurrer is a separate, distinct, and complete act in itself. It does not necessarily entitle the successful party to a dismissal of the pleading as a matter of right. The court has the inherent power to grant leave to amend or plead over. The part of the order made in the exercise of this power has not been endowed with the attribute of appealability by the statute.

By the Court. — Appeal dismissed.

        Yaeger v. Fenske (1962), 15 Wis. (2d) 572, 113 N. W. (2d) 411; Szuszka v. Milwaukee (1961), 15 Wis. (2d) 241, 112 N. W. (2d) 699; Estate of Baumgarten (1961), 12 Wis. (2d) 212, 107 N. W. (2d) 169; Kimmel v. Kimmel (1960), 9 Wis. (2d) 484, 101 N. W. (2d) 666; Mitler v. Associated Contractors (1958), 3 Wis. (2d) 331, 88 N. W. (2d) 672.

        State Department of Public Welfare v. LeMere (1962), 17 Wis. (2d) 240, 116 N. W. (2d) 173; Russell v. Johnson (1961), 14 Wis. (2d) 406, 111 N. W. (2d) 193; Schlesinger v. Schroeder (1933), 210 Wis. 403, 245 N. W. 666.


author: Dieterich, J. Wilkie, J.

text:
    Town of Mt. Pleasant, Appellant, v. City of Racine, Respondent.

      April 3

    April 28, 1964.

      For the appellant there was a brief by Benson, Butchart & Haley of Racine, and oral argument by Emery B. Benson,

    For the respondent there was a brief and oral argument by Jack Harvey, city attorney.
   Dieterich, J.

The case was tried upon stipulated facts. The annexed property comprises an area of approximately 145 acres, almost all of which was devoted to agricultural purposes on the date the annexation ordinance- was passed. The map showing the boundaries of the annexed area was made a part of the plaintiff’s complaint, and a copy of this map is reproduced in the opinion.

The property touches upon the Racine city limits only by a corridor approximately 1,705 feet long, and varying in width from approximately 306 feet to 152 feet. The corridor is 153 feet wide where it touches the southwest corner of the Racine city limits, and also where it connects with the boundaries of the annexed area. At the time of the passage and approval of the annexation ordinance, there was no dedicated street in existence through the corridor — although such a street was established on March 18, 1963 — and there were no other city streets giving access thereto. The main portion of the annexed property was platted for 328 residential lots with an expected future population of 1,148 persons. Prior to the annexation the town had entered into a contract with the city providing for sewage disposal, in the area and a sewerage system was under construction. The town had also received authorization from the public service commission to construct water public utility service to the area, with water supplied by the city. The town of Mt. Pleasant maintains a police force, is part of a school district, has street-grade ordinances, an agreement for fire protection with the city and an adjacent village, and all the usual incidents of municipal corporations.

The annexed area was a part of the town of Mt. Pleasant and lies wholly within three miles of the corporate limits of the city of Racine. Neither Racine county, which employs a full-time planner, nor the town, has ever approved the plat. Prior to the passage of the annexation ordinance, the Racine common council had received a report from the planning division of the Wisconsin department of resource development, which, among other things, found that the annexation was not against the public interest.

The trial court’s findings of fact were that the corridor contains a full-width street; that the area within the corridor will contain or provide all of the necessary services to the entire annexed area; that the corridor provides a natural and practical connection whereby the area as a whole may be developed as an integral and homogeneous part of the city of Racine; and that the city has a need for additional residential

and shopping areas to provide for its expanding population. The trial court concluded that the statutory requirements for annexation were complied with; that the tract in question is contiguous to the city of Racine; and that the tract is reasonably suitable or adaptable to city uses and needs.

The major issue raised on the appeal is whether the annexation was void because the area proposed to be annexed is not contiguous to the city of Racine within the requirements of sec. 66.021 (2) (a) 2, Stats. That section limits direct annexation to land “contiguous” to the annexing city or village.

The statement of agreed facts indicates that the 145-acre tract sought to be annexed touches upon the Racine city limits only by a 1,705-foot long corridor, varying in width from approximately 152 feet to approximately 306 feet.

There is a decided lack of Wisconsin authority on the question of the validity of “corridor” or “strip” annexations. There is, however, no lack of out-of-state authority holding such annexation void. See: Clark v. Holt (1951), 218 Ark. 504, 237 S. W. (2d) 483; Potvin v. Chubbuck (1955), 76 Idaho 453, 284 Pac. (2d) 414; People v. Ihde (1961), 23 Ill. (2d) 63, 177 N. E. (2d) 313; State v. Kansas City (1950), 169 Kan. 702, 222 Pac. (2d) 714; State ex rel. Danielson v. Mound (1951), 234 Minn. 531, 48 N. W. (2d) 855.

This court has authority to review the annexation of territory to a city or village, and apply “the test of reason,” which test is applicable to the inclusion, as well as the exclusion of land by internal or external boundaries. Town of Fond du Lac v. City of Fond du Lac (1964), 22 Wis. (2d) 533, 126 N. W. (2d) 201. This court in the Fond du Lac Case made it clear that the discretionary power to a city to determine its own boundaries is not wholly without limitations. The question is not whether a city can have only one continuous boundary line, but whether the proposed boundary lines are reasonable in the sense that they were not fixed arbitrarily, capriciously, or in the abuse of discretion. The precise holding of the Fond du Lac Case is not directly in point, for there it was held that a city could not, by annexation, create a small “island” bounded on three sides by the annexed territory, and on the fourth by the city’s existing boundary. However, the principles involved and stated in the Fond du Lac Case for determination of the validity of proposed annexations are binding.

The legal as well as the popular idea of a municipal corporation in this country, is that of oneness — a collective body, not several bodies. So, as to territorial extent, the idea of a city is one of unity, and not of plurality; of compactness or contiguity; not separation or segregation. In re Village of Oconomowoc Lake (1959), 7 Wis. (2d) 400, 403, 97 N. W. (2d) 189. See 37 Am. Jur., Municipal Corporations, p. 644, sec. 27; 62 C. J. S., Municipal Corporations, p. 87, sec. 9 b.

Shoestring or gerrymander annexation is not a rare phenomenon. The tendency of subdividers to reach far out into the countryside for vacant land, and their desire to attach it to the city of services, is natural; however, this can lead to annexations which in reality are no more than isolated areas connected by means of a technical strip a few feet wide. Such a result does not coincide with legislative intent, and tends to create crazy-quilt boundaries which are difficult for both city and town to administer. See Cutler, Characteristics of Land Required for Incorporation or Expansion of a Municipality, 1958 Wisconsin Law Review, 6, 33.

A thorough review of the record, and application thereto of the rule of reason as set forth in the Fond du Lac Case, compels us to conclude that the annexation of the area in question does not meet the statutory requirement of contiguity. It follows that the judgment of the trial court declaring the proceedings valid must be reversed.

By the Court. — The judgment is reversed, and cause remanded with instructions to the trial court to enter judgment declaring the annexation ordinance adopted by the city of Racine on March 7, 1963, void and of no effect.

Wilkie, J.

(dissenting). Annexation proceedings are purely statutory. The only statutory requirement as to the contiguity of territory proposed to be annexed is set forth in sec. 66.021 (2), Stats., which reads as follows:

“Methods of annexation. Territory contiguous to any city or village may be annexed thereto in the following ways

There is no further statutory definition of what the term “contiguous” means.

The majority has engrafted onto the statute the additional requirement that a proposed annexation is subject to review under the “rule of reason” to determine whether the proposed boundary lines are “reasonable in the sense they were not fixed arbitrarily, capriciously, or in the abuse of discretion.”

I see no basis for superimposing this additional requirement. The statute merely requires that the property proposed to be annexed be “contiguous” to the annexing city or village. There is no requirement as to the extent or degree of contiguity. There is no statutory prohibition against a “corridor” or “strip” annexation. We have found no previous case in this state that defines the term “contiguous” as applied to municipal annexations. Decisions of this court dealing with school-district attachment proceedings have approved “strip” or “corridor” attachments.

In the instant case the trial court found that the proposed annexed territory was contiguous to the city and that the requirements of the statute had been met. The record also shows that, prior to enactment of the annexation ordinance, the Racine common council had received a report from the planning division of the Wisconsin department of resource development, finding that the annexation was not against the public interest. This report was submitted pursuant to sec. 66.021 (11) (c) 1 and 2, Stats., which orders the planning division in part to consider whether the proposed territory to be annexed is “contiguous.”

Under present laws cities or villages must consider proposed annexations as presented by petitioners on a “take it or leave it” basis. They may not initiate proposed annexations of territory that they consider should properly be annexed in the orderly development of the urban community. The procedure that is entirely laid out by statute has been evolved over many years by the legislature, which, in almost every biennium, is asked to give careful consideration to changes in these statutes. Especially in view of this legislative history, I do not think that this court should now attach this court-made modification of the requirement of “contiguity.”

If the “rule of reason” is to be engrafted onto sec. 66.021 (2), Stats., in regard to whether or not the proposed annexed area is “contiguous,” then certainly the trial court should have a chance to enter findings on whether the proposed boundary lines were “reasonable in the sense that they were not fixed arbitrarily, capriciously, or in abuse of discretion.”

I must respectfully take strong exception to the majority’s conclusion that the proposed boundary lines were unreasonable as a matter of law. I would affirm.

I am authorized to state that Mr. Justice FaiRCHild joins in this opinion.

       “(2) Methods of annexation. Territory contiguous to any city or village may be annexed thereto in the following ways:
      “(a) Direct annexation. A petition for direct annexation may be filed with the city or village clerk signed by: . . .
      “2. If no electors reside in such territory, by a. the owners of one-half of the land in area within such territory, or b. the owners of one-half of the real property in assessed value within such territory.”

        Madison v. Blooming Grove (1961), 14 Wis. (2d) 143, 109 N. W. (2d) 682; Town of Madison v. City of Madison (1960), 12 Wis. (2d) 100, 106 N. W. (2d) 264.

        Town of Fond du Lac v. City of Fond du Lac (1964), 22 Wis. (2d) 533, 541, 126 N. W. (2d) 201.

        Joint School Dist. v. Sosalla (1958), 3 Wis. (2d) 410, 88 N. W. (2d) 357; State ex rel. Badtke v. School Board (1957), 1 Wis. (2d) 208, 83 N. W. (2d) 724.


text:
    Flippin and others, Respondents, v. Turlock and another, Appellants.

      April 3

    April 28, 1964.

      For the appellants there was a brief by Wickham, Bor gelt, Skogstad & Powell, attorneys, and Edmund W. Powell and Donald R. Peterson of counsel, all of Milwaukee, and oral argument by Mr. Peterson.

      For the respondents there was a brief by Eisenberg & Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Mr. Star.

   Wilkie, J.

The first issue that must be resolved on this appeal is whether the order for a new trial in the interests of justice entered on August 26, 1963, met the requirements of sec. 270.49 (1) and (2), Stats., both as to timeliness and content.

The motion for a new trial was filed, argued, and orally decided by the trial court within sixty days of the verdict. The court’s determination to grant a new trial was as it stated, “consistent with the principles of justice.” Yet the court’s formal order for the new trial was not entered until August 26, 1963, and it did not set forth in itself the detailed grounds for granting the new trial although it stated that the court “having rendered an oral decision” entered its new trial order “on all the proceedings heretofore had herein.”

The purpose of sec. 270.49 (1), Stats., was succinctly stated in Guptill v. Roemer where our court stated, at page 18:

“It seems fairly obvious that the objective the legislature must have had in mind, in enacting the 1917 amendment to sec. 270.49 (1), Stats., was to prevent the delay in the administration of justice which had previously resulted by reason of some trial courts having heard arguments on motions after verdict for a new trial and then having deferred the rendering of their decisions thereon for long periods of time.”

In Guptill the court held that where a memorandum decision had been filed with the court within sixty days of the verdict, but the court’s formal order for a new trial was not filed until later, that there had been full compliance with the sixty-day.provision of sec. 270.49 (1), Stats. In the instant case, the memorandum decision was not reduced to writing and filed until August 5, 1963, eight months and two weeks after the verdict was returned. Yet the motion for a new trial had been presented, argued and actually decided by the court within the sixty-day period. We hold that this was a substantial compliance of the sixty-day provision of sec. 270.49 (1).

We also are of the opinion that the order for a new trial of August 26, 1963, incorporating the oral decision of November 12, 1962, which decision had been transcribed and filed on August 5, 1963, met the provisions of sec. 270.49 (2), Stats., requiring that the grounds be set forth in detail where a new trial has been ordered in the interest of justice. The phrase, “now, in accordance with said oral decision [which decision was then transcribed and filed] and on all the proceedings heretofore had herein,” is logically equivalent to the expression, “for the reasons set forth in the memorandum decision.”

The basic purpose of notifying the aggrieved party (Tur-lock) of the reasons for granting the new trial is fully satisfied by referring to the court’s full discussion of his reasons in the oral decision of November 12, 1962, as transcribed and on filé prior to the formal court order of August 26, 1963.

The recent case of Campbell v. Wilson is distinguishable because in Campbell the oral decision had not been transcribed or filed prior to the court order directing a new trial. The formal order for new trial in Campbell attempted to incorporate by reference a document (the memorandum decision) not then in existence.

The second issue presented on this appeal is whether the trial court abused its discretion in ordering a new trial in the interest of justice.

It is well established that the supreme court will affirm a trial court’s order for a new trial in the interest of justice unless there is a clear showing of abuse of discretion. A trial court has wide discretion to order a new trial in the interest of justice if the verdict is against the great weight and clear preponderance of the evidence, although the evidence is not so insufficient as to justify changing the answers to the special verdict questions.

As an incident of making a judgment that a verdict is against the great weight and clear preponderance of the evidence, the trial court must be able to evaluate the general credibility of the witness based upon his appearance and demeanor, as well as evaluating the internal content and consistency of his testimony.

Turlock’s testimony at the trial and at a previous adverse examination brought out inconsistencies as to his speed and the position of his car with respect to the synchronized stop- and-go lights on Vliet street (the street on which he was traveling) and also as to his lookout as to the Flippin car. Since the important question was which driver had the benefit of a green light, the trial court could well consider these inconsistencies along with the demeanor of Turlock to be crucial, and that a new trial was required in order to avoid a miscarriage of justice.

By the Court. — Order affirmed.

Currie, C. J., and Fairchild, J., dissent.

       “270.49 Motion for new trial on minutes. (1) The trial judge may entertain a motion to be made on his minutes, to set aside a verdict and grant a new trial because of errors in the trial or because the verdict is contrary to law or to the evidence, or for excessive or inadequate damages or in the interest of justice; but such motion must be made and heard within sixty days after the verdict is rendered, unless the court by order made before its expiration extends such time for cause. When an appeal is taken from the order on such motion a bill of exceptions must be settled. Such motion, if not decided within the time allowed therefor, shall be deemed overruled. In case judgment be entered without deciding a pending motion for a new trial, the supreme court may direct the trial court to determine such motion within sixty days after notice of filing the remittitur.
      “(2) Every order granting a new trial shall specify the grounds therefor. In the absence of such specification, the order shall be deemed granted for error on the trial. No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein or the memorandum decision setting forth such reasons is incorporated by reference in such order. The court may grant or deny costs to either party.”

       (1955), 269 Wis. 12, 68 N. W. (2d) 579, 69 N. W. (2d) 571.

       The order of August 26, 1963, is clearly different from the order found insufficient in Cary v. Klabunde (1961), 12 Wis. (2d) 267, 269, 107 N. W. (2d) 142, where the order merely recited: “The court having rendered its written decision on motions after verdict directing that there be a new trial in the interests of justice, . . .”

        Goldenberg v. Daane (1961), 13 Wis. (2d) 98, 108 N. W. (2d) 187.

        Alexander v. Meyers (1952), 261 Wis. 384, 52 N. W. (2d) 881.

       (1962), 18 Wis. (2d) 22, 117 N. W. (2d) 620.

         Werren v. Allied American Mut. Fire Ins. Co. (1958), 3 Wis. (2d) 313, 88 N. W. (2d) 348.

        Brunke v. Popp (1963), 21 Wis. (2d) 458, 124 N. W. (2d) 642; Pingel v. Thielman (1963), 20 Wis. (2d) 246, 121 N. W. (2d) 749; Bohlman v. Nelson (1958), 5 Wis. (2d) 77, 92 N. W. (2d) 345.


author: GoRdon, J.

text:
    City of Marshfield and others, Plaintiffs and Respondents, v. Town of Cameron and others, Defendants and Appellants: Ziegahn and others, Intervenors and Appellants.

      April 3

    April 28, 1964.

      For the appellants there was a brief by Chambers, Nash & Pierce of Wisconsin Rapids, and oral argument by Lloyd L. Chambers.

    For the respondents there was a brief and oral argument by John H. Stauber of Marshfield.
   GoRdon, J.

Pursuant to the stipulated case, the plaintiffs sought an order requiring the defendants to pay a portion of the latters’ receipts from the 1961 utility taxes. The defendants, on the other hand, sought a determination that sec. 76.28, Stats., is unconstitutional. The trial court rejected the defendants’ contention and entered judgment in favor of the plaintiffs.

In support of their contention that sec. 76.28, Stats., is unconstitutional, the appellants make two principal arguments. First, they contend that sub. (3) of the statute is void for indefiniteness and uncertainty. Secondly, it is urged that sec. 76.28 is arbitrary and capricious in its classifications and thereby contravenes both the due-process and the equal-protection provisions of the Fourteenth amendment to the United States constitution.

I. Indefiniteness and Uncertainty of the Statute.

Our reading of sec. 76.28 (3), Stats., brings to mind the dour observation that “law is common sense as modified by the legislature.” The appellants refer to sec. 76.28 (3) as “a monstrosity” which is laden with “mumbo jumbo.” It is undeniable that the meaning of the statute is elusive and that it is not easily comprehensible. Nevertheless, it is the burden of the judiciary, in examining legislative enactments, to uphold such pronouncements if any reasonably intelligible analysis can result. It is not the court’s function to determine the wisdom of legislative enactments. Appleton v. Outagamie County (1928), 197 Wis. 4, 220 N. W. 393.

In State ex rel. Carlson v. Kingston (1933), 210 Wis. 301, 304, 246 N. W. 426, the court noted with reference to sec. 76.28, Stats, (prior to the 1939 and 1947 amendments) : “If the statute works inequitably, the remedy lies with the legislature and not with the courts.”

Careful and patient reading of the 1939 amendment (ch. 516, Laws of 1939) results in our conclusion that the legislature directed that whenever a joint school district extends into one or more counties with 50,000 population or less and also into a county with more than 50,000 population, in such case every municipality (including cities in such districts) must apportion.

The 1947 amendment (ch. 237, Laws of 1947) reflects a legislative determination that whenever a joint school district lies wholly within counties with 50,000 population or less and such joint school district also contains a city, the latter fact will excuse all municipalities in such district from sharing for the reason that a city is not required “by law” to share.

While the legislative intent behind the various distinctions made in the statute is not crystal clear, we cannot subscribe to the appellants’ argument that the statute is so confounding as to be constitutionally offensive.

II. Arbitrary and Capricious Classifications.

The statute in question, sec. 76.28, Stats., apportions utility tax receipts in a different manner for counties having various size populations. Sub. (3) distinguishes between counties having more or less population than 50,000. This court has often upheld classification by population. In State v. Evans (1907), 130 Wis. 381, 385, 110 N. W. 241, we said:

“That there are distinctions between large and dense communities and small and sparser ones as separate classes is, of course, obvious. That such differences are germane and relevant to some purposes of legislation has been declared, almost without limit, by courts.”

A comparable conclusion has been expressed in other Wisconsin cases. Estate of Ebeling (1919), 169 Wis. 432, 437, 172 N. W. 734; Rinder v. Madison (1916), 163 Wis. 525, 532, 158 N. W. 302.

A broad constitutional attack against sec. 76.28, Stats., was made in the case of State ex rel. Joint School Dist. v. Becker (1928), 194 Wis. 464, 215 N. W. 902. There, at page 469, the court concluded that there was no violation of due process since the apportionment of taxes was within the province of the legislature. See State ex rel. Superior v. Donald (1916), 163 Wis. 626, 158 N. W. 317.

Municipal corporations, being creatures of the state, are not permitted to censor or supervise the activities of their creator. Accordingly, a municipality may not challenge the action of the legislature in enacting sec. 76.28, Stats. State v. Mutter (1964), 23 Wis. (2d) 407, 127 N. W. (2d) 15; In re Application of Racine (1928), 196 Wis. 604, 220 N. W. 398. Although towns are denominated “quasi-municipal corporations,” they are likewise “political subdivisions and governmental agencies of the state.” Milwaukee v. Sewerage Comm. (1954), 268 Wis. 342, 349, 67 N. W. (2d) 624.

It is also well established that municipalities may not invoke privileges and immunities under the federal constitution in opposition to the will of the state. Thus, a municipality cannot complain of a denial of the equal protection of the laws or of a violation of due process within the meaning of the Fourteenth amendment when the issue pertains to the effect of a state statute upon such municipality. Williams v. Baltimore (1933), 289 U. S. 36, 53 Sup. Ct. 431, 77 L. Ed. 1015; Trenton v. New Jersey (1923), 262 U. S. 182, 43 Sup. Ct. 534, 67 L. Ed. 937.

However, in the instant case we have the presence of individual intervenors who are “property owners, electors, citizens, and taxpayers,” and they do not suffer from the same limitations as the defendant towns. Accordingly, the question of constitutionality has been properly raised.

We conclude that sec. 76.28, Stats., as amended, does not violate either the federal or the state constitutions and is not arbitrary or capricious in its classifications.

By the Court. — Judgment affirmed.


author: Beilfuss, J. Per Curiam

text:
    Estate of Hatzl: State, Appellant, v. Libra, Respondent.

      April 3

    April 28, 1964.

      For the appellant the cause was argued by Beatrice Lam-pert, assistant attorney general, with whom on the briefs was George Thompson, attorney general.
    For the respondent there was a brief by Walstead, Anderson, Bylsma & Eisenberg of Madison, and oral argument by Clarence G. Bylsma.

       Motion for rehearing denied, without costs, on June 30, 1964.

   Beilfuss, J.

Two issues are presented on this appeal:

1. Does the county court, in a probate proceeding, lack jurisdiction to assign a portion of the estate to a deceased person ?

2. Does the county court have power to amend its final judgment to correct a mistake?

1. Jurisdiction to assign to a deceased person. Respondent argues that the existence of an heir is a jurisdictional fact without which a probate court cannot render a final judgment assigning a share in an estate to such heir, on the authority of Guardianship of Reeve (1922), 176 Wis. 579, 186 N. W. 736. That case held that the existence of a ward was a jurisdictional fact without which guardianship proceedings could not be had. It was reasoned that an administration of an estate had on presumption of death is invalid when it is afterwards shown that the supposed decedent was actually alive at the time. Here the death and domicile of Marie Hatzl are the jurisdictional facts; they are not challenged. Marie Hatzl was domiciled in Dane county at the time of her death. The property administered in the probate proceedings had its situs in Dane county.

Estate of Parsell (1923), 190 Cal. 454, 213 Pac. 40, 25 A. L. R. 1561, is cited to us for the proposition that a judgment directing distribution to a deceased person is void. That case proceeded on the theory that a judgment rendered for or against a deceased person is void. While this is undoubtedly true as respects a judgment in personam, a judgment in rem or quasi in rem ought not be subject to the same rule. The main objective of probate proceeding is the orderly distribution of the property of deceased persons. The court of the domicile of the deceased has jurisdiction over the property within its territorial jurisdiction. The jurisdiction of the court in probate is in rem. As such, the judgment binds all persons having a property interest when statutory notice requirements have been complied with.

Sec. 269.46 (1), Stats., operates on these judgments so as to prevent any undue hardship.

In this case we are dealing once again with the wavering line between jurisdiction and error.

“In dealing with such a matter as this the distinction between total want of jurisdiction; absolute absence of power, and want of jurisdiction, in the sense the term is commonly used, characterizing judicial action which is so highly erroneous as to be without legal justification, yet not, as has been said, beyond competency to err, — must be kept in mind. The two phases of jurisdiction were discussed at considerable length in Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909, one being termed want of power and the other inexcusable departure from established principles; — a gross misuse of power. The former is a usurpation. The resulting judgment or order is totally void. The latter is mere error. The resulting judgment is valid, till avoided in proceedings to that end.” Cline v. Whitaker (1911), 144 Wis. 439, 441, 129 N. W. 400.

We conclude that the county court did have jurisdiction to enter the final judgment of October IS, 1959, even though that judgment was erroneous.

2. The county court’s power to amend its final judgment. The respondent does not allege fraud on the court, nor the grounds of sec. 269.46, Stats., mistake, inadvertence, surprise, nor excusable neglect as a basis for amending the judgment; therefore we do not consider them.

The respondent does contend that the judgment was based upon mistaken and erroneous information and that it should be amended to reflect the true situation.

Sec. 324.21, Stats., provides:

“RECORDS, how amended. Any county court may amend, correct and perfect its record of any matter transacted therein in such manner as may be necessary to make the same conform to the truth.”

In Estate of Cudahy (1928), 196 Wis. 260, 264, 219 N. W. 203, we said:

“Manifestly this authorizes the correction of purely clerical mistakes. It authorizes the correction of records which do not speak the truth concerning the real action of the court. It does not authorize the court to reverse or set aside its orders or to vacate its judgments.”

This construction of the statute was quoted in Estate of Gunderson (1947), 251 Wis. 41, 27 N. W. (2d) 896, and Estate of Strange (1958), 3 Wis. (2d) 104, 87 N. W. (2d) 859.

In Hall v. Hall (1898), 98 Wis. 193, 73 N. W. 1000, we held that a judgment rendered twelve years earlier could be amended under the statute to conform to its oral rendition.

In Estate of Ross (1923), 181 Wis. 125, 135, 194 N. W. 151, we said regarding a judgment erroneously construing a will challenged twenty-three years after entry:

“After the judgment of which appellants had notice they had the right to apply to the county court to have it corrected if they chose to do so. The rule is very liberal in respect to such proceedings. Sec. 4046, Stats, [now sec. 324.21]; Estate of Leavens, 65 Wis. 440, 27 N. W. 324; In re Fisher, 15 Wis. 511; Brook v. Chappell, 34 Wis. 405.”

We went on to hold that the right had been waived.

We shall not attempt to distinguish the indistinguishable. The cases are in irreconcilable conflict.

The statute presents only one facet of the problem. Although neither side has raised the point, we have decided to consider whether the probate court has inherent power to modify or revoke its previous orders at any time, subject to the statute of limitations, for mistake as well as fraud and judicial error.

A number of cases have repeated the holding of In re Fisher (1862), 15 Wis. 567 (*511), 578 (*521) :

“3. The county court, sitting as a court of probate, may, at any time, in furtherance of justice, revoke an order which has been irregularly made or procured by fraud.”

Many of the cases are collected and analyzed in Estate of Bailey (1931), 205 Wis. 648, 238 N. W. 845, and Estate of Penney (1937), 225 Wis. 455, 274 N. W. 247.

It appears that, with few exceptions, the broad language of the Fisher Case has been cited in cases of fraud or jurisdictional error.

In Estate of Bailey, supra, we affirmed the action of the county court in vacating a former final judgment and rendering a new final judgment on the ground that the first judgment was entered by the court on a mistaken conception of the facts. The case was distinguished from Estate of Cudahy, supra, on the ground that the latter involved an error of law. But see Estate of Ross, supra.

Estate of Bailey, supra, can be distinguished from the case before us on the ground that a minor was not represented by guardian ad litem in the proceedings in the Bailey Case and did not enjoy her constitutional right to her day in court. Estate of Evans, supra. Moreover, in the instant case no facts were withheld from the county court when the determination of heirship was made. The determination was made pursuant to a proof of heirship based upon affidavits showing that “Johanna Hatzl has not been heard from for over 30 years” and “It is indicated . . . that Johanna Hatzl, if she be dead, may have left surviving a son, whose name and address is unknown.”

We hold that courts of probate jurisdiction have the same power over their judgments and orders that courts of equity and law have. Probate courts are among those subject to the provisions of sec. 269.46, Stats. Estate of Callahan (1947), 251 Wis. 247, 29 N. W. (2d) 352; Estate of Baumgarten (1961), 12 Wis. (2d) 212, 107 N. W. (2d) 169. In so holding we return to the doctrine of Brunson v. Burnett (1849), 2 Pin. (Wis.) 185. There it was argued that the probate court, being a creature of statute, had no authority over its judgments and orders beyond that given by statute. This argument was rejected and it was decided that the probate court had the same powers as a court of equity or law. The reason given was that such powers were required in order to promote the efficient administration of estates.

Since the respondent has not made a case for reopening the final judgment of October 15, 1959, under sec. 269.46 (1), Stats., and a fraud on the court, constructive or otherwise, has not been alleged or proved, the judgment must stand unless it is tainted with jurisdictional error. We find no jurisdictional error because of the mistake in assigning the property. Therefore the final judgment of October, 1959, could not be amended. The amended final judgment of October 1, 1963, must be reversed and vacated. However, on remand the petition should not be dismissed. The state’s objection to the petition is in substance a general demurrer under sec. 263.07. The petition alleges facts which, if proved, will afford the basis of recovery under sec. 318.03 (4). On remand proceedings should be conducted to determine whether the petitioner can establish his claim.

Our decision in Estate of Smith (1962), 16 Wis. (2d) 118, 113 N. W. (2d) 841, does not require a special administration in this case. In the Smith Cases one Wallace Smith had a remainder interest in a residuary trust under his uncle’s will, contingent on his surviving his aunt. If Wallace Smith died leaving issue the issue would take his share under the will. In default of issue his share would go to his surviving brothers. The aunt died in 1939. Wallace Smith had disappeared in 1932. His share was held by the trustee pending a determination of his whereabouts. In 1954 the trust was terminated and Wallace Smith’s legacy paid to the state treasurer. In those proceedings the county court determined that Wallace Smith was the owner of the legacy and the facts surrounding his disappearance were such that it could not find he was not still alive in 1954. We held that determination could not be collaterally attacked. We further stated that if Wallace Smith had died within the seven years during which he could have ‘claimed his legacy under sec. 318.03 (4), Stats., an administration of his estate would be necessary because the claim would have been an asset of his estate. Sec. 253.10 (5). Here the claim could never have been an asset of Johanna Hatzl Libra’s estate.

By the Court. — Judgment reversed; cause remanded for further proceedings consistent with the opinion.

Wilkie, J., took no part.

The following opinion was filed June 30, 1964:

Per Curiam

{on motion for rehearing). In our original opinion we held that the petition of respondent Libra alleges facts which, if proved, will afford the basis of recovery under sec. 318.03 (4), Stats. Therefore, we declared that on remand proceedings should be conducted to determine whether Libra can establish his claims under that statute.

In his motion for rehearing the attorney general requests this court to take judicial notice of an order purported to have been entered January 17, 1963, dismissing the claim of Libra made pursuant to sec. 318.03 (4), Stats., from which no appéal to this court has been taken. Nothing was stated in our original opinion which would preclude the attorney general from asserting a defense of res judicata in the county court upon remand pursuant to our mandate. Therefore the proper forum to raise any issue of res judicata is in the county court on remand from this court, not, in this court by motion for rehearing.

The motion for rehearing is denied, without costs.

       Restatement, Judgments, p. 128, sec. 32; Estate of Evans (1957), 274 Wis. 459, 471a, 80 N. W. (2d) 408, 81 N. W. (2d) 489.

       “The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding.”

       Cases holding fraud: Estate of Leavens (1886), 65 Wis. 440, 27 N. W. 324; Estate of O’Neill (1895), 90 Wis. 480, 63 N. W. 1042; Parsons v. Balson (1906), 129 Wis. 311, 109 N. W. 136; Carlson v. MacCormick (1922), 178 Wis. 408, 190 N. W. 108; Estate of Batz (1930), 202 Wis. 636, 233 N. W. 555. Cases holding jurisdictional error: Israel v. Silsbee (1883), 57 Wis. 222, 15 N. W. 144; Guardianship of Reeve (1922), 176 Wis. 579, 186 N. W. 736.
      “The words ‘irregularly made’ contained in the above quotation from In re Fisher, supra, undoubtedly refer to jurisdictional rather than nonjurisdictional error.” Estate of Eannelli (1956), 274 Wis. 193, 201, 80 N. W. (2d) 240.

       When pertinent facts have not been brought to the court’s attention, whether a judgment is based on mistake of fact or whether an imposition on the court amounting to fraud has been practiced is a close question. Compare Will of Cosgrove (1941), 236 Wis. 554, 295 N. W. 784.

       Sec. 253.10 (8), Stats., was not applicable. No petition had been filed for an administration of Johanna Hatzl’s Estate.


text:
    Seelandt, Appellant, v. Seelandt, Respondent.

      April 3

    April 28, 1964.

      For the appellant there was a brief by Lepp & Lepp of Kenosha, and oral argument by Nathaniel S. Lepp.

    For the respondent there was a brief by Martin B. An-taramian, attorney, and Mittelstaed, Heide, Sheldon & Hart-ley and W. A. Sheldon of counsel, all of Kenosha, and oral argument by W. A. Sheldon.

   Currie, C. J.

Plaintiff attacks the order of May 27, 1963, because it was based solely on statements by counsel for the parties and a conference between the trial judge and the minor, Laura Seelandt, of which no record was made. In view of the trial court’s failure to have a record made of the first proceedings, it was error to have entered the order of May 27th. Smith v. Smith (1932), 209 Wis. 605, 610, 245 N. W. 644. Plaintiff, however, thereafter moved the county court to change the custody back to herself, and a hearing was held June 7, 1963, of which a complete record was made. Since the same issue was passed upon in both proceedings, we hold that the record made in the subsequent proceeding has rendered moot the issue of failure to make a proper record at the first hearing.

There still remains for disposition the issue of whether the record made in this subsequent hearing of June 7th supports the determination that custody of Laura should be awarded to the paternal grandparents rather than plaintiff. This necessitates a review of the evidence.

Prior to the June 7th hearing, both plaintiff and defendant and their counsel had agreed that the parties would consult Dr. Harold T. Schroeder, a psychiatrist and director of the Family Counseling Center of Kenosha County, Inc. A written report of Dr. Schroeder was made to Judge Carlson and was received in evidence. Dr. Schroeder had also seen plaintiff over a period of several months at the counseling center during 1962. In addition, before making his report he had conferences with plaintiff, defendant, and Laura. From his prior contacts with plaintiff Dr. Schroeder concluded that she “was a highly neurotic person.” He found that she had great hostility toward defendant and that some of this “was seeping over into her relationship with the children, particularly Laura.” Dr. Schroeder’s conclusion with respect to Laura’s custody was stated in his report as follows:

“I feel that Mrs. Seelandt has been quite rigid, quite strict, and certainly has not been understanding of the psychological development of this girl. I feel that she has tried to inhibit Laura’s potential feminine development and has created unconsciously some fear in this girl regarding her femininity. I will not go into many of the things that Laura discussed with me only to say I feel that should Laura return to the home of the mother, I would expect a continuation of this friction and do not feel that Mrs. Seelandt will be able to properly relate to this girl on a mother-daughter basis.”

Catherine Behrens, a guidance counselor at the junior high school attended by Laura, testified that she had counseled with plaintiff for two years. It was her opinion that in “some cases” plaintiff was overly protective and too overly demanding of perfection. It was her further opinion that plaintiff expected more of a fourteen-year-old child than the average fourteen-year-old child is expected to do. With respect to the custody issue, Miss Behrens testified that she thought it best if Laura had her own home away from her parents.

Ruth Walker and Marjorie Chambers, work supervisor and caseworker, respectively, of the Kenosha county welfare department, both testified that the mother was the logical person to have custody of a child of Laura’s age. Miss Walker admitted, however, that, if there are emotional problems, “maybe” the daughter should not remain with the mother.

Reverend John W. Sell, assistant pastor of the church attended by plaintiff for fifteen months, testified that plaintiff regularly attended church, and that Laura attended Sunday school and occasionally came to church with plaintiff. It was his opinion that plaintiff is morally good and shows concern for her children. He stated that at times plaintiff was overly concerned about Laura but that this is not abnormal in a mother.

Plaintiff testified in her own behalf. She recounted instances of disagreement which had arisen between Laura and herself when plaintiff had rightly restricted Laura’s activities or enforced discipline. The impression created by plaintiff’s testimony was that plaintiff had not been overly restrictive in her treatment of Laura and that Laura is the type of youngster who requires parental discipline.

We quote from the trial court’s memorandum decision rendered at the conclusion of the June 7th hearing as follows i

“The law very wisely provides that a child who has reached the age of fourteen has the right to express her desire as to where and with whom she desires to live, and that is to be given consideration by the Court. If the child gives good reasons for such preference the Court should give that reasoning respect. This girl in the opinion of the Court is entitled to a lot of respect in her expression of preference. The Court conferred with her, and she disclosed to this Court that she is a highly intelligent child. She has a realization of her moral obligations and that she has aims and a realization of her responsibilities in life and that she has a determination to carry them out regardless of where she lives, but she disclosed to the Court that because of the feeling that has arisen between her and her mother she cannot tolerate life with her or live close to her from day to day any longer and that it interferes with her work and disturbs her so that she cannot do her work properly, and that is why she desires to live elsewhere. She realizes that she has to do good work in school. She told me that she realized that she must keep good company. She realizes that she must, even though not living with her mother, visit her frequently and keep up that relationship, and that it is an important family relationship, but she stated that she cannot bear being forced to live the cramped life which she described to me.
“. . . In the present hearing the letter of Doctor Schroeder and the testimony of Miss Behrens, the child’s counselor at school, as well as the other evidence presented, reaffirms the conclusion which the Court arrived, at in the former hearing that this child, in consideration of her own best interest, should be placed elsewhere than in the custody of her mother. The best interest of this gifted child in the Court’s opinion will be best served by freeing her from the shackling effect of the mother’s neurosis, hostility and rigidity by placing her in the custody of her paternal grandparents so that there will be no interruption of her school progress, her friendships, her opportunity to visit with her mother and brothers, her father, and her maternal grandparents.
“The Court is of the opinion that this girl has arrived at an age where she needs some freedom in her association with good companions and needs some recognition of having intelligence rather than being hampered and clamped by over-tight supervision.
“I believe that the letter of Doctor Schroeder when considered with the girl’s expressed anxiety, and also the opinion of Miss Behrens, establishes without any contradiction in the record that the girl’s best interest will be served by placing her custody in the relatively neutral parental [paternal] grandparents so that this developing child can find her fullest expression.” (Emphasis supplied.)

Where a trial court, as here, makes no formal findings of fact but its memorandum decision makes an analysis of the facts, the decision is accorded the consideration and weight of formal findings. Gumz v. Chickering (1963), 19 Wis. (2d) 625, 636, 121 N. W. (2d) 279; L. Rosenheimer Malt & Grain Co. v. Kewaskum (1957), 1 Wis. (2d) 558, 560, 85 N. W. (2d) 336; Will of Daniels (1937), 225 Wis. 502, 510, 274 N. W. 435.

The trial court’s finding that the best interests of Laura will be promoted by placing her custody in the paternal grandparents is not against the great weight and clear preponderance of the evidence. There is no other factor present which would cause this court to conclude that the trial court abused its discretion in placing custody in such grandparents.

Laura lacked only three weeks of being fifteen years old at the time of the June 7th hearing. The trial court properly gave weight and consideration to the wishes and desires of Laura as related in the informal conference with her. Mr. Chief Justice Rosenberry stated in Jones v. State ex rel. Falligant (1933), 211 Wis. 9, 17, 247 N. W. 445 :

“However, the time is not far distant when this girl or young woman will take charge of her own life, whatever the decision of this court may be. It would seem proper and just to give some consideration and weight to her wishes and desires in the matter.
“Our statutes (sec. 319.01) provide that a minor over fourteen years of age may nominate his own guardian, who if approved by the Court shall be appointed. Courts ordinarily give much consideration in cases where guardians are to be appointed to the wishes of children.”

In Edwards v. Edwards (1955), 270 Wis. 48, 56b, 70 N. W. (2d) 22, 71 N. W. (2d) 366, however, this court cautioned that the personal preference of the child should not be deemed to be controlling on the issue of custody unless the child gives substantial reasons why it would be against his or her best interests to award custody contrary to such expressed preference. It would appear from the aforequoted portion of the trial court’s memorandum decision that Laura did advance substantial reasons why it would be against her best interest for her to remain in the custody of plaintiff.

While we commend the trial court for having so conferred with Laura to discuss the custody issue with her in order to obtain her preference with respect thereto and her substantiating reasons for such preference, we would prefer that the record on appeal disclosed what transpired at this conference. We suggest two possible ways of securing such record. One would be to have the reporter in chambers during the conference and have him record what there transpired under instructions not to transcribe his shorthand notes nor file the transcript thereof unless an appeal is taken. The second would be to have the trial judge dictate into the record the gist of what the child told him in conference.

Plaintiff advances the further contention that the trial court under the provisions of sec. 247.24, Stats., could not award custody to the grandparents without making a specific finding that plaintiff is unfit. The record establishes without dispute that plaintiff is a. woman of good morals. The statutory words “fit and proper” have usually been interpreted in the past decisions of this court as connoting moral fitness. One exception is Hellermann v. Hellermann (1946), 249 Wis. 190, 23 N. W. (2d) 408. There the court was concerned with whether the divorced mother possessed the mental and emotional stability to permit custody of two minor children to be awarded her. Implicit in the decision in that case was the assumption, that if she lacked such mental or emotional stability, she would not be a fit person to be awarded custody within the provisions of sec. 247.24.

The welfare of the child is the controlling consideration. Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737. This being so, an emotional disturbance of a parent which makes it harmful to the welfare of a minor child to continue custody in such parent, should constitute unfitness within the meaning of this statute. We so hold. Cf. Combs v. Combs (1958), 162 Cal. App. (2d) 33, 327 Pac. (2d) 164.

We conclude that there was full compliance with the statute when the trial court found in its memorandum decision that plaintiff’s neurosis had a harmful effect on Laura which should be removed by the change of custody to the paternal grandparents.

By the Court. — Orders affirmed.

       This statute provides in part as follows:
      “In rendering a judgment of annulment, divorce or legal separation, the court may make such further provisions therein as it deems just and reasonable concerning the care, custody, maintenance and education of the minor children of the parties, and give the care and custody of the children of such marriage to one of the parties to the action, or may, if the interest of any such child demands it, and if the court finds either that the parents are unable to adequately care for any such child or are not fit and proper persons to have the care and custody thereof, may declare such child a dependent and give the care and custody of such child to a relative (as defined in ch. 48) of the child, a county agency specified in s. 48.56 (1), a licensed child welfare agency, or the state department of public welfare.” (Italics supplied.)


author:
Dieterich, J.
      Hallows, J.

text:
    State ex rel. Barth, Petitioner, v. Burke, Warden, Respondent.

      March 25

    June 2, 1964.

      A brief was filed by Harry P. Hoeffel of Appleton for the petitioner.
    A brief was filed by George Thompson, attorney general, and William A. Plats, assistant attorney general, for the respondent.
   Dieterich, J.

On April 24, 1962, Clifford W. Barth was convicted on 19 counts of issuing worthless checks in violation of sec. 943.24, Stats., in the county court of Outa-gamie county, Gustave J. Keller, Judge.

Barth was first brought before the county court on December 1, 1961, and was bound over for trial after waiving preliminary examination. The district attorney requested, and obtained, a ten-day period to investigate the matter further. On December 12, 1961, Barth again appeared before the court, and the information was read to him. The following then occurred:

“Q. Do you understand the information, Mr. Barth? A. I think I do. (At which time the defendant was advised of his legal rights.)
“Q. Do you desire to retain an attorney to represent you? A. I called an attorney. He didn’t show up. I think the first or 20th of December.
“Q. You were in court the 1st of December, 1961. Did you try calling again? A. No.
“Q. What is the reason he didn’t show up? A. The reason I didn’t call another — figured he wouldn’t come up. I called his office.
“Q. Who is that? A. Franklin Nehs.
“Q. How about this matter of consolidation? You want to retain an attorney? A. Yes. (At which time the defendant was sworn in by the Court to determine whether or not he was a pauper.)
“Q. Do you own any real estate? A. I have part of a lot partly paid for out here — Town of Menasha.
“Q. What is it worth? A. Maybe $1,500.
“Q. How much indebtedness against it? A. About $500.
“Q. The Court holds you are not a pauper.”

The matter was continued until December 18, 1961, at which time the following took place:

“By the Court: Let the record indicate that the defendant is present in person. The state is represented by the district attorney. Now, you have been here, Mr. Barth, several times, and I believe on the last occasion on the complaint that we had, before your plea to the information you wanted to retain an attorney. A. I did Your Honor.
“Q. The Court put you under oath and the Court is of the opinion you are not a pauper. We have received some new complaints. Now — (At which time the four counts of the complaint were read to the defendant.) (The defendant stated he understood each of the counts of the complaint.)
“Q. You are informed you are entitled to a preliminary examination. You can waive it if you want to. A. I waive it.
“Q. Let the record indicate the defendant waived the preliminary examination and is bound over for the reading of the information. (At which time the information was read by the district attorney.) ... You understand the various counts? A. I do, Your Honor.
“Q. If you so desire you can retain an attorney. Do you wish to have an attorney? A. No. I wish you would take them all in account.”

Barth entered a plea of guilty to the charges and on January 19, 1962, was sentenced on one count to the county jail for a period of one year, with Huber Law privileges. On each of the other 18 counts sentence was withheld, and he was placed on probation for four years.

On April 24, 1962, Barth again appeared before the court after having violated the provisions of his probation and also the provisions of the Huber Law. He was asked whether he was dissatisfied with the terms of his probation, and he replied:

“A. I will put it this way. 1 knew I couldn’t keep the probation under the rules and regulations that you set down. I think it is best I just get off of it. Serve my time out and get done with it.”

The trial court stated that Barth’s request would be complied with, and his probation was revoked. He was sentenced to a total of five years in the state prison (five one-year terms to run consecutively). The total number of counts involved in the April 24, 1962, sentence was 19, whereas at the original trial sentence was withheld on only 18 counts, Barth having been sentenced on January 19, 1962, to one year in the county jail under the Huber Law on one count. Thus the sentences imposed on April 24, 1962, appear to include one count for which Barth had previously been sentenced to the county jail.

The petitioner’s major contention is that he was not represented by counsel, although faced with the possibility of a substantial prison sentence. He also raises additional arguments to the effect that: (1) The sentence is void because it included one more count than he was charged with; (2) the' sentence is void because it included one count for which he had previously been sentenced to one year in the county jail; and (3) that he was not advised of his right to appeal, and was denied a transcript of the proceedings.

Although the petitioner was charged with a misdemeanor, he faced a substantial sentence on the 19 counts with which he was charged. The trial court asked Barth several times whether he wished to retain an attorney, but the record does not reveal that he was informed that if indigent he would be entitled to have counsel appointed for him. He was also questioned as to his assets, and it was revealed that he had “part of a lot partly paid for” which was worth about $1,500, and which was subject to a debt of about $500. Without more, the trial court found that he was not a pauper. The amended petition states that Barth had been doing work off and on for the owner of the lot in question, and that the agreement was that when he had done $900 worth of work, the owner would transfer title to him. There is nothing in the record which indicates that Barth was ever advised or that he ever knew that the offenses to which he pleaded guilty could subject him to a sentence of five years in the state prison. The trial court’s inquiry into his indigency was at best cursory, for upon eliciting the information that he had some undefined interest in property worth about $1,500, and subject to about $500 in encumbrances, the court found him to be not a pauper. Upon the record in the instant action the trial court’s finding that Barth was not indigent was arbitrary and was made upon an inadequate determination of the facts. See State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91.

Under all the circumstances we are obliged to determine that the trial court erred in finding Barth to be nonindigent, and that he did not freely and intelligently waive his constitutional right to be represented by counsel. The conviction is therefore set aside. Because we so decide, it becomes unnecessary to consider the petitioner’s other contentions.

By the Court. — It is considered that the issuance of the writ of habeas corpus be omitted, and we hereby vacate and set aside the judgment and sentence of the county court of Outagamie county, and order a new trial. The warden of the state prison is directed to deliver the petitioner to the sheriff of Outagamie county to be held by him for further proceedings according to law.

Hallows, J.

(dissenting). I must respectfully dissent from the conclusion that the trial court erred in finding Clifford W. Barth to be nonindigent and that he did not freely and intelligently waive his constitutional right to counsel.

The record shows Barth was knowledgeable, that he understood the information, attempted to get counsel to represent him, and then decided he did not want counsel. This is not a case of an ignorant accused being taken advantage of. Barth was a convict of some accomplishments in the field of crime who accepted probation knowing he was too weak to keep the conditions and who, upon breach thereof, requested to be sentenced so he could get it over with.

I consider the trial court’s inquiry into Barth’s indigency sufficient. Barth had some duty to come forward in his own behalf if he disagreed with the finding of the court. The recognition and the guaranty to the accused of his constitutional rights do not require an elaborate ritual by the trial court in each case, or that the record must show in detail an aggressive attitude by the trial court. On appeal we look for a denial of the accused’s rights. In doing so in this case the majority misplaces the burden of proof.. While perhaps more could be desired in the way of examination by a trial court, we cannot find in the record that Barth was denied his constitutional rights.

I am authorized to state Mr. Chief Justice Currie joins in this dissenting opinion.


author: Goedon, J.

text:
    Garot, Appellant, v. Garot, Respondent.

      April 27

    June 2, 1964.

    For the appellant there was a brief by Hanaway & Ross of Green Bay, and oral argument by Charles T. Hanaway.

      For the respondent there was a brief by Evrard, Evrard, Duffy, Holman & Faulds of Green Bay, and oral argument by John P. Duffy.

   Goedon, J.

Every marriage contains a romantic story, and every contested divorce portrays a tragic one. This particular saga is an especially melancholy tale. It had its origin with the marriage of Lawrence and Kathleen on August 19, 1939. At the time of the trial, Lawrence was fifty-two years of age and Kathleen was forty-six. No children were born to the marriage, but a boy, born in 1946, was adopted.

From the time of the marriage in 1939 until 1948, the parties appear to have been relatively happy as they progressed through this vale of tears. A cruel event occurred in 1948: Kathleen became afflicted with multiple sclerosis. By 1952 it had rendered her unable to walk. While the disease did not cause her actual pain or affect her mental capacity, it nevertheless required that she have almost constant care. She remained in that status to the date of trial.

At the onset of his wife’s illness, Lawrence’s earnings were barely sufficient to cover the cost of her care. Perhaps under the prod of that need, he intensified his business efforts and attained significant success in his insurance business. At the time of trial, he had business offices in six cities and did business in five states. Lawrence worked with 75 full-time agents of the company and traveled most of the week.

It was when he returned home on weekends that there occurred the abusive conduct on the part of Kathleen which prompted him to bring this action. Starting in about 1954, Kathleen would berate him when he arrived home for the weekend. She repeatedly accused him of having affairs with other women, not working, drinking, and carousing. Lawrence testified that on the normal weekend when he would come home his wife would commence her verbal abuse by asking, “What pig have you slept with all week?” He also testified that these remarks were made by her in the presence of their son. The record contains references to several specific events in which Kathleen made abusive accusations of infidelity.

Although the son was not called to testify, Lawrence’s testimony regarding his wife’s accusations was well substantiated by Mrs. Coppens, who had worked in the Garot home as a housekeeper. She testified that Kathleen’s interrogations of her husband were “not normal questions” and expressly confirmed the fact that they occurred at times in front of the boy.

It is significant, in our opinion, that Kathleen herself acknowledged charging her husband with associating with other women “on some occasions” but said she “didn’t remember” doing it in front of the boy. She also admitted that her accusations were not based upon actual knowledge. When asked if she was suspicious of her husband, Kathleen responded: “Yes, I was. I have a very fiery temper. I would say things and immediately would be sorry and tell him so, but in the last few years he didn’t accept an apology.”

Accusations of a spouse’s infidelity, drunkenness, and carousing cannot fairly be characterized as “trivial.” In the case at bar, the accusations were open, repetitive, and groundless.

The record clearly establishes that commencing in 1954 Kathleen practiced a course of cruel and inhuman treatment upon her husband, within the meaning of sec. 247.07 (4), Stats. The record further establishes that her conduct affected Lawrence’s health and made the marriage state intolerable. Lawrence’s marital distress resulted in his incurring a physical malady which necessitated medical attention.

In our opinion, Lawrence was not obliged to tolerate indefinitely the abusive conduct of his wife. The record not only establishes the existence of that conduct, but further demonstrates that Lawrence himself was not guilty of any improper acts which would warrant invoking the doctrine of recrimination. Mentzel v. Mentzel (1958), 4 Wis. (2d) 584, 588, 91 N. W. (2d) 101; cf. Bahr v. Bahr (1956), 272 Wis. 323, 325, 75 N. W. (2d) 301.

In Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N. W. (2d) 386, this court said:

“However, treatment which does or is well calculated to impair the health of a party, makes the marriage state intolerable and renders a party incapable of performing his or her duties in married life, satisfies the ‘cruel and inhuman treatment’ referred to in the statute.”

In Mayhew v. Mayhew (1942), 239 Wis. 489, 495-497, 1 N. W. (2d) 184, there are numerous quotations from earlier Wisconsin decisions which are also applicable. Even though Kathleen suffered from a crippling disease, it did not carry with it any mental disability; it is not a defense to her conduct toward her husband. See Caldwell v. Caldwell (1958), 5 Wis. (2d) 146, 154, 92 N. W. (2d) 356.

We conclude that the trial court’s findings are against the great weight and clear preponderance of the evidence submitted. The trial court should have found that cruel and inhuman treatment of Lawrence by Kathleen was established, and, accordingly, it should have granted to him a' divorce from the bonds of matrimony. Upon the return of the matter to the circuit court, that court should also resolve any questions which may arise as to property division, alimony, custody, visitation, or support.

By the Court. — Judgment reversed, and cause remanded with directions to grant a divorce to appellant.