#### Lamberton, Appellant, vs. Lamberton, Respondent.

*September 14*

October *3, 1905.*

*Divorce from, bed and board for limited time: Judgments:*Construe-* *tion: Abatement of action: Interlocutory judgment: Subsequent proceedings for divorce from bed and board forever.*

A judgment in February, 1899, granted to the plaintiff “a divorce from bed and board for the term and period of *two years*from” its date, awarded to the plaintiff the possession, use, and income of certain property for the term and period of *five years*from its date, and expressly provided that it should not prejudice the right of plaintiff to apply for judgment of divorce from the bonds of matrimony, of from bed and board forever, in the event defendant did not refrain from the use of strong and in*617toxicating liquors and drinks, and that it should not he deemed to provide for or to he a final distribution and division of the property of defendant between the parties. *Held:*

(1) Such judgment did not bar the defendant from bed and board after the termination of the two years.

(2) The action did not abate and go out of court at the expiration of the two years.

(3) The judgment was an interlocutory judgment within the calls of sec. 2883, Stats. 1898.

(4) On the express ground that the judgment of 1899 was an interlocutory judgment, the plaintiff was not barred after *two*years, and within the *five*years, .from petitioning the court for a judgment of .divorce and separation from the defendant from bed and board forever, for a reasonable division of the property, for reasonable costs and attorney’s fees, and for general relief.

Appeal from an order and an order and a judgment of the circuit court for Bacine county: WaeeeN D; TaeeaNT, Judge.

*Reversed.*

The plaintiff and the defendant were married August 18, 1875. December 9, 1898, the plaintiff, *Mrs.*Lamberton, ■commenced an action in the circuit court against the defendant, her husband, for a divorce — the complaint alleging, in ■effect, such marriage and the residence of both parties in this state; that they had four children, one nineteen years old ■and another sixteen years old; that during the marriage the plaintiff had demeaned herself as the faithful and affectionate wife of the defendant; that the husband had been an habitual •drunkard for more than five years immediately prior to the ■commencement of the action; that during the last year before the commencement of the action, and especially during the last three months thereof, he had inflicted cruel and inhuman treatment on her, and had repeatedly threatened her with bodily injury; that she was forty-seven years of age and that he was forty-eight years of age; and contained other allegations in respect to the property, and prayed a divorce from •bed and board forever, and for the custody of the children and a final division and distribution of the property of the *618defendant. The defendant answered by way of admissions and denials. January 25, 1899, the parties - by their respective attorneys stipulated and agreed that, in case a divorce should be granted, then that there should be a division and distribution of the property and the plaintiff and children supported as therein agreed; that at the end of five years from the time of entry of judgment therein, if such judgment should be entered, or any time thereafter, either party thereto might apply to the court for a redistribution of the property rights, to be made -in such manner as to the court might seem just and agreeable-to equity; that the defendant reserved therein the right and privilege to visit the members of his-family occasionally, without prejudice to the right of either party; and it was therein mutually agreed that such agreements should take effect and be in force from the time the-court should enter judgment in the matter, if any should be so entered. The circuit court thereupon and on February 10,. 1899, found, as matters of fact, such marriage, residence, and children; that during such married life the plaintiff had demeaned herself as a faithful and affectionate wife of the defendant; that for more than one year immediately preceding the commencement of the action the defendant had been an habitual drunkard, and continued to be such; that for more-than one year immediately preceding the commencement of the action the defendant had on many occasions, without cause- or provocation, grossly abused and ill-treated the plaintiff, and had applied opprobrious epithets to her, and had repeatedly threatened her with physical injury, and had been, without any cause or justification or excuse, guilty of cruelty in his-treatment of the plaintiff; that his habits and conduct toward the plaintiff had been such as to render it improper for her longer to be compelled to live with him as his wife; that the plaintiff should receive a conveyance and assignment from the defendant of the property therein described; that the plaintiff *619should have the possession, use, and income of the homestead farm therein, described for five yeárs from that date; that debts should be paid as therein prescribed; that the defendant should have the possession, use, and income of certain of the property as therein mentioned; that the plaintiff should have-the custody of the minor children and maintain them; and that the facts, matters, and things stated and set forth in the-complaint were true. As conclusions of law the court found “that the plaintiff is entitled to judgment of divorce from bed and board, as against said defendant, for the term and period of two years from this date, and that the defendant should be restrained and enjoined from attempting to make his home with or in any other manner interfering with or annoying the plaintiff, excepting that he be entitled to visit his infant children herein referred to twice in each month and at reasonable hours within the day; the judgment herein not in any manner to prejudice the right of the plaintiff to apply for judgment of' divorce from the bonds of matrimony, or from bed and board forever, in the event that the defendant does not refrain from the use of strong and intoxicating liquors and drinks” — and further to the effect that the defendant should convey to the-plaintiff the lands mentioned; that the plaintiff have the possession and use of the farm described, with the personal property mentioned, for the period of five years from the date thereof, subject to the payment of the taxes thereon; that the other property be adjudged to the husband; that the wife have the custody and control of the minor children and to provide-for them; and further found that the judgment therein should not be deemed to be a final distribution and division of the-property of the defendant between the parties thereto, but should be considered by the court upon any further application for division of property between the parties thereto, and ordered judgment accordingly.. Thereupon and on Eebruary 3 0, 1899, judgment was entered in accordance with such find*620ings of fact and conclusions of law, and tbe same contained, among other things, these provisions:

“That the plaintiff be, and she hereby is, granted a divorce from bed and board for the term and period of two years from and after this date as against said defendant, and he, the said ■defendant, is restrained and enjoined from attempting hereafter during said period to make his home with or in any manner interfering with the plaintiff, excepting only that he shall have the right to visit his infant children twice in each month during the daytime at the home of said plaintiff, if they make their home with her; this judgment not to in any manner prejudice the right of the plaintiff to apply for judgment of ■divorce from the bonds of matrimony, or from bed and board forever, in the event that the defendant does not refrain from the use of strong and intoxicating liquors and drinks.”

October 22, 1903, the plaintiff, *Mrs. Lamberton,*petitioned the court for a judgment of divorce and separation from the defendant from bed and board forever, and for a reasonable ■division of the property, and for reasonable costs and attorney’s fees, and for general relief, and therein stated the proceedings, findings, and judgment mentioned, and the occurrences and conduct of the defendant after the rendition of that judgment, and, among other things, alleged that the defendant had not refrained from the use of strong and intoxicating liquors and drinks, but continued to use them to excess, as he ‘ ■did prior to the rendition of the judgment. Upon such petition the defendant was, on December 8, 1903, ordered to show cause before the court, December 29, 1903, why the prayer of the petition should not be allowed and the petitioner be granted a divorce from bed and board forever from the defendant, and a reasonable division of the property be made, together with costs and general relief. December 29, 1903, the defendant answered such petition and order to show cause, by way of admissions, denials, and counter allegations, and, among other things, denied that he drank or used intoxicating liquors to excess; that since the rendition of said judgment he had not been under the influence of liquor or intoxicated, but *621bad been temperate in bis.babits; tbat be bad not been able to-work, and bad no trade ontside of bis knowledge of farming; tbat be bad received tbe income from tbe trust estate of' $26,000 left bim by bis father; and prayed tbat tbe plaintiff be compelled to perform tbe agreement and stipulation of' January 25, 1899. On January 23,1904, Judge BeldeN, of' tbe First circuit, before Avhom tbe proceedings were pending, made an order therein requesting Judge TaRRANT, of tbe Second circuit, to attend and preside at tbe bearing of tbe above-matter, and to bear, try, and determine tbe same. A trial thereof having been bad, tbe court orally decided tbat such-petition was a continuation of tbe former action and tbat the-findings and conclusions of law therein were *res adjudicaba,*and tbat tbe plaintiff was entitled to a judgment of divorce-from the defendant from bed and board forever and for a final division of the property. Thereupon tbe respective parties prepared and submitted such findings of fact and conclusions-of law as they claimed themselves entitled to. At tbe time of' such submission tbe defendant made objection to the jurisdiction of tbe court over tbe subject matter, for tbe reason that-tbe same bad already been terminated in a judgment. After-argument upon such objection tbe court, on January 16,1905, ordered a new trial therein, Avithout costs, on the ground tbat tbe court bad no jurisdiction of the subject matter of the-plaintiff’s petition of October 22, 1903; and thereupon and' on January 16,1905, entered another order and judgment dismissing all proceedings subsequent to tbe petition of October-22, 1903, without prejudice to tbe plaintiff’s proceeding in accordance with the judgment of February 10, 1899, and in accordance with tbe law and procedure in such matters proper,, without cost to either party. From tbe order of January 16,. 1905, granting a new trial, and from tbe order and judgnent of January 16, 1905, dismissing tbe proceedings for want of: jurisdiction, tbe plaintiff appeals.

- TF. *W.*Rowlands, for tbe appellant.

*622Por tbe respondent there was a brief by *Nath. Perales & ■Sons*and *Olmion 0. Price,*and oral argument by *Mr. Price.*

Cassoday, O. J.

After bearing the evidence and tbe argument of counsel on tbe trial of tbe issues made by tbe plaintiff’s petition of October 22, 1903, and the defendant’s answer thereto, and after tbe respective parties bad requested findings of fact and conclusions of law, which they submitted to tbe court, and after tbe court bad announced that tbe evidence fully warranted findings and judgment in favor of tbe plaintiff, if tbe couid; bad authority to pronounce such findings and judgment, -the defendant moved for a new trial on tbe ground 'that tbe jurisdiction of tbe court over the subject matter bad already been terminated by tbe judgment of February 10, 1899. Tbe court sustained tbe objection, and by order •granted a new trial on that ground, and thereupon ordered and adjudged that all proceedings subsequent to such petition be dismissed without prejudice, as mentioned in tbe foregoing statement. As stated in tbe opinion of tbe trial court and corn ceded by both parties, “divorce proceedings are tbe creature of -statute law.” *Martin v. Martin,*112 Wis. 314, 318, 87 N. W. 232, 88 N. W. 215, and numerous cases there cited. Tbe judgment of February 10, 1899, was based upon findings that tbe defendant was guilty of cruel and inhuman treatment and that for more than a year immediately preceding tbe commencement of tbe action he bad been an habitual drunkard. Upon either of such grounds tbe court might have adjitdged “a •divorce from tbe bonds of matrimony.” Subds. 5, 6, sec. 2356, 'Stats. 1898. So upon either of such grounds tbe court was expressly authorized by tbe statute to adjudge “a divorce .from bed and board forever *or for a limited time.”*Sec. 2357, 'Stats. 1898. The judgment of February 10, 1899, granted to tbe plaintiff “a divorce from bed and board for tbe term and period of *two years*from” tbe date of that judgment. That .judgment, entered pursuant to tbe stipulation of tbe parties *623made January 25, 1899, awarded to tbe plaintiff tbe right to tbe possession, use, and income of a large portion of tbe property for tbe term and period of *five years*from its date, and ■expressly provided tbat it should not prejudice tbe right of tbe plaintiff to apply for judgment of divorce from the bonds of matrimony, or from bed and board forever, in tbe event tbat tbe defendant did not refrain from tbe use of strong and intoxicating liquors and drinks, and tbat it should not be deemed to provide for or to be a final distribution and division of the property of tbe defendant between tbe parties thereto. Thus tbe judgment barred tbe defendant from bed and board for tbe term of two years and awarded to tbe plaintiff tbe possession, use, and income of„a large portion of tbe property for tbe period of five years. Tbe plaintiff’s petition was filed after tbe expiration of tbe two years but before tbe expiration of tbe five years. Of course, tbe judgment did not bar tbe defendant from bed and board after tbe termination of tbe two years.

Did tbe action abate and go out of court on tbe expiration ■of. the two years, February 10, 1901 ? Or did it continue in court, with tbe “right of tbe plaintiff to apply for judgment of ■divorce from tbe bonds of matrimony, or from bed and board forever,” in case tbe defendant did not reform and become a sober man, as provided in tbe judgment ? Or was tbe power ■of tbe court in tbat action completely suspended and terminated on tbe expiration of tbe two years, regardless of whether tbe defendant continued to be an habitual drunkard ■or not ? If tbe court bad no power after tbe expiration of the two years to grant relief to tbe plaintiff in tbat action for such misconduct of tbe defendant, then would tbat judgment be a bar to a new action brought by tbe plaintiff for tbe same purpose ? If not, then tbe power of the court would be made to turn upon tbe form of tbe proceedings rather than upon tbe nature of the wrongs complained of. It is true, as indicated in tbe opinion of tbe trial court, tbat the authority expressly .given by statute to revise a judgment of divorce as to tbe prop*624erty interests of tbe parties from time to time upon petition,, as here, is “founded upon tbe idea of jurisdiction in tbe court to award a divorce,” and “then to make division or direction respecting the property of tbe parties.” Sec. 2369, Stats. 1898. So tbe statute, on such petition being filed, expressly authorizes tbe revision and alteration -of “such judgment concerning tbe care, custody, maintenance and education of tbe children.” Sec. 2363, Stats. 1898. So tbe statute provides that “a judgment of divorce from bed and board, forever or for *a limited time, .*. . may be revoked at any time thereafter, under such regulations and restrictions as tbe court may impose, upon tbe joint application of tbe parties and their producing satisfactory evidence of their reconciliation.” Sec. 2370, Stats. 1898. Besides, tbe statutes confer upon courts certain powers in general language, as follows:

> “Tbe circuit court has jurisdiction of all actions to affirm or to annul-a marriage, or for a divorce from tbe bond of matrimony, or from bed and board, and *authority to do all ads and things necessary and proper in such actions*and to carry *its orders and judgments into execution*as hereinafter prescribed. All such actions shall be commenced and' conducted and *the orders and judgments therein enforced according to the provisions of these statutes in respect to actions-in courts of*record, *as far as*applicable, except as provided in this chapter.” Sec. 2348, Stats. 1898.

That section is a combination and amendment of secs. 8- and 15, ch. Ill, R. S. 1858. It is more general and comprehensive than tbe sections so amended. Under the'statutes so-in force prior to such amendment, a wife obtained a judgment of divorce against her husband and for $800 alimony and costs, and tbe same was docketed, and execution issued thereon and returned unsatisfied, whereupon, and against repeated objections for want of authority, tbe husband was-brought before tbe county judge on supplementary proceedings and examined, and disclosed tbe fact that tbe husband bad conveyed bis homestead to bis. father, and thereupon a *625receiver was appointed, and the receiver brought the action against the father to set aside such conveyance and obtained favorable findings and judgment, and from that judgment the father appealed to this court, and it was here argued at length that the divorce statutes gave no authority for such supplementary proceedings nor such appointment of a receiver and the maintenance of such action by him. But in an elaborate opinion by Dixoiñt, O. !., after conceding that the court possessed no powers except such as were conferred by statute, the court reached the conclusion that the statute, which declared that “the court shall have power to award issue, to adjudge costs, and to enforce its judgments, as in other cases,” gave ample authority for such supplementary proceedings, receivership and action. *Barker v. Dayton,*28 Wis. 367, 369-378, 380-382.

It has often been said by this court that there can be but. one final judgment, and that must dispose of all the issues; and rights of the parties. Sec. 2882, Stats. 1898. The Statutes of 1898 made an important amendment to sec. 2883 by-adding the following:

> “In case of a finding or decision substantially disposing of the merits, but leaving an account to be taken, or issue of fact, to be decided, or some condition to be performed, in orden fully to determine the rights of the parties, an interlocutory-judgment may be made, disposing of all issues covered by the finding or decision, and reserving further questions until the; report, verdict, or subsequent finding.” *Rehbein v. Rahr,*109 Wis. 136, 152, 85 N. W. 315; *Garvin v. Crowley,*116 Wis. 496, 504, 93 N. W. 470.

Here the findings of February 10, 1899, that the defendant was guilty of cruel and inhuman treatment and was an habitual drunkard, substantially disposed of the merits of the action, and the limited divorce from bed and board was, in effect, entered upon condition that the defendant should refrain from the excessive use of strong and intoxicating liquors; and the question whether he so refrained was necessarily reserved *626for subsequent determination. After careful consideration we are forced to tbe conclusion that tbe.judgment of February 10, 1899, was an interlocutory judgment, witbin tbe meaning of tbe amendment to tbe statutes last quoted; and tbis decision is based wholly on tbat ground.

*By the Gow't.*— The order, and tbe order and judgment of the circuit court from which tbe appeal was taken, are both reversed, and tbe cause is remanded with direction to complete tbe trial of tbe issues made by tbe plaintiff’s petition and tbe defendant’s answer thereto, and for further proceedings according to law.