Hoernig v. Hoernig , 109 Wis. 229 ( 1901 )

Winslow, J.

In what respect the plaintiff was wronged by the judgment in this case, we have been unable to perceive. The title to all of the property which stood in her name at the time of the divorce had been derived by her from her husband. It was, therefore, subject to division ,by the terms of the statute. Stats. 1898, sec. 2364. It is difficult to-see how the fact that it may have been transferred in fraud of creditors can affect this right, because it was still property “ derived from her husband.” But the court found on sufficient evidence that it was not transferred in fraud of creditors; hence the question is not here.

The court gave the .wife the Athern notes — $3,000 — apparently in repayment of the $1,500 which she put into the defendant’s business in 1894. The net amount of all property over and above indebtedness was $1Y,100. Deducting the amount of the Athern notes from this, leaves $14,100. Out of this the court gave the plaintiff the homestead, worth $6,000, free of incumbrance. This is a larger proportion of the estate than was allowed by this court in the cases of McChesney v. McChesney, 91 Wis. 268, and Roelke v. Roelke, 103 Wis. 204, which cases are quite similar in their facts to the case at bar. It does not seem to us that the plaintiff has any just ground of complaint.

It is said that the court erred in refusing to find upon the question of adultery. Examination of the complaint shows that no cause of action for adultery was stated or attempted to be stated. Certain acts of the defendant were stated, from which, if true, a strong inference of adultery would arise; but it was nowhere alleged that adultery ivas in fact committed, nor were the necessary allegations negativing plaintiff’s connivance, etc., prescribed by Eule XXIX of the Circuit Court Eules, contained in the complaint. The acts alleged were plainly stated simply as acts of cruel and inhuman treatment. The court refused to find specifically as to these acts, but found generally that cruel and inhuman treatment during the continuance of the marriage was proven.' We find no prejudicial error in this.

By the Court.— Judgment affirmed.