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Bacon vs. Bacon.

tate to support herself, and yet be held to support her. It is to be presumed that division and distribution of estate, under the statute, is adequate for the wife; if inadequate, it ought not to be made. Division and distribution of estate, therefore, is a substitute for alimony, extinguishing the right to it, by making the wife independent of the husband's faculties. And because it is essentially a complete and permanent provision, in lieu of the transitory provision of alimony, the statute makes it final by withholding the power of revision over it.

The husband's estate of which division and distribution may be made, may be real or personal, or both. When judgment of divorce awards personalty only to the wife, whether payable like an annuity or in a gross sum, it is prima facie for alimony; and if it be intended to operate as a division and distribution of estate, the judgment must so declare. Then only will it be final. Hopkins v. Hopkins, Thomas v. Thomas, supra. But if judgment of divorce divest the husband of his title to realty, transferring it to the wife, it is necessarily division and distribution of estate, ex proprio vigore final. For it is only under the power to make division and distribution that the court can transfer realty of the husband to the wife.

This has not always been understood or expressed as clearly as it might have been. And doubtless incidental inaccuracies of expression may be found in some of the cases. That may unfortunately happen on all subjects. But whenever the question has been directly before the court, there is no ruling in conflict with the position now held. If there were, our views are so clear that we could not hesitate to overrule a case in conflict with them.

It is quite apparent that the original judgment of the court below was framed upon a different theory, and regards both the real and personal estate assigned to the wife as alimony. Indeed, it expressly so calls them. But this is a patent and mere misuse of the word, not affecting the legal construction of the judgment. The words, alimony and allowance,

VOL. XLIII-14

Bonin vs. The Green Bay & Minnesota Railway Company.

used in it, are superfluous. The judgment must be taken according to its legal effect as judgment for division and distribution between the parties of the husband's estate, real and personal. The court had no power to render the judgment transferring the husband's realty to the wife, except under sec. 29, as partition of the husband's estate between the parties. And it lost all power over the judgment, except to enforce it, after the term at which it was rendered.

There are circumstances in this case which may render it a hard one. On that we express no opinion. But it is our duty now, as always, to see that hard cases do not make bad law.

By the Court.-The judgment appealed from is reversed, and the cause remanded to the court below with directions to vacate it.

BONIN VS. THE GREEN BAY & MINNESOTA RAILWAY COMPANY.

Practice in supreme court.

Where a judgment is reversed under the rule, for nonappearance for the respondent, under an erroneous belief of the court that the appellant has complied with the rule as to printing and serving his case and brief, a motion, made within thirty days, to vacate the judgment and reinstate the cause, will be granted; and, if not granted within the thirty days, is sufficiently in the nature of a motion for rehearing to authorize an order directing the clerk of this court to retain the record, within the statute. Pierce v. Kelly, 39 Wis., 568, distinguished.

APPEAL from the Circuit Court for Outagamie County.

When this cause was called in its order, November 21, 1877, there being no appearance for the respondent, the court, without motion, reversed the judgment with costs, under rule 17. On the 15th of December following, the respondent's counsel moved to vacate the judgment of reversal; and filed in support

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Bonin vs. The Green Bay & Minnesota Railway Company.

of the motion an affidavit, which states, among other things, that no bill of exceptions was ever settled in the cause; that no printed or other case, and no printed or other brief for the appellant, was ever served or filed therein; and that the cause had not been noticed for argument at this term by the appellant. On the 19th of the same month, an order was entered retaining the papers in this court until the motion should be heard. On the 4th of January, 1878, the motion was argued by S. U. Pinney for the respondent, and T. B. Chynoweth,

contra.

No brief for the motion is found on the files. For the appellant it was argued, in opposition to the motion, that the court loses all jurisdiction of a cause after thirty days from a decision of the appeal, unless the papers are retained by order of the court for the purpose of a motion for a rehearing (Tay. Stats., ch. 139, §7; Pringle v. Dunn, 39 Wis., 435; Pierce v. Kelly, id., 568; Estey v. Sheckler, 36 id., 434); which motion must be filed within the thirty days, and submitted on printed arguments, the moving party making ten days service of such argument on his part part before submitting it (rule 20); that reversal or affirmance under rule 17 is a judgment or decision on the appeal (Pierce v. Kelly and Estey v. Sheckler, supra); that this court will entertain no motion not made and heard within the thirty days, except to correct mistakes in its own record (rule 21; Knox v. Clifford, 41 Wis., 458); and that, as the reversal under rule 17 for nonappearance and failure to submit, is without reference to the merits, and counsel for the appellant will not even be heard (Butts v. Fenelon, 38 Wis., 664), the absence or presence of case and briefs is immaterial.

RYAN, C. J. We should deplore a failure of jurisdiction to retain this appeal and restore it to the calendar. For the reversal under the rule, for nonappearance for the respondent, when the cause was called in its order, was due to our own failure to ascertain positively whether the counsel for the ap

Bonin vs. The Green Bay & Minnesota Railway Company.

pellant had printed and served his case and brief, to entitle him to the reversal. We assumed that counsel, taking advantage of his opponent's failure to comply with the rule, had himself complied with it. In this it now appears that we were mistaken. We trust that we may not again be so misled.

We were at first apprehensive that this motion might be governed by Pierce v. Kelly, 39 Wis., 568. But a little reflection satisfied us that the cases are clearly distinguishable. Pierce v. Kelly had been heard, and dismissed upon hearing. The remedy of the appellant in that case, if any he had, was, as in any case of dismissal upon hearing, by ordinary motion for rehearing under rule 20. And because he failed to make that motion within thirty days after judgment, the court lost jurisdiction of the appeal; and the order to retain the record was not within the statute.

In this case, however, the appeal has not been heard. The judgment was reversed under rule 17, without hearing. And the present motion is in effect for the hearing of the appeal. In such a case, the ordinary motion for rehearing would be unavailing, because no affidavit, nothing but the record and briefs founded on the record only, could be considered on the motion. A motion like the present ought properly, and indeed necessarily, to be founded on affidavit and made orally at the bar. And if not granted within thirty days after judg ment, it is sufficiently in the nature of a motion for rehearing, to authorize the order retaining the record within the statute. Indeed, the rules are defective in not providing for such a motion, as in the nature of a motion for rehearing, so as to authorize an order retaining the record. And it will be the practice hereafter, when such a motion is made, in such a case, within thirty days after judgment, to treat it as a motion in the nature of a motion for rehearing, and to direct an order retaining the record until the determination of the motion, as was done in this case.

By the Court.-The motion is granted.

Cotzhausen vs. Judd and others.

COTZHAUSEN VS. JUDD and others.

PARTNERSHIP. Unauthorized application of partnership claim to individual debt.

One partner, without the consent, express or implied, of his copartners, cannot apply a claim of the firm to the payment of his individual debt, even in order to retain for the firm its debtor's custom; and such attempted application, with knowledge of the facts by such debtor, will not defeat an action at law upon the claim, by the firm or its assignee. Viles v. Bangs, 36 Wis., 131.

APPEAL from the Circuit Court for Milwaukee County. Action to recover a balance alleged to have been originally due from the defendants to the firm of Brockhaus & Bradley, on a current account between them, and by that firm assigned to the plaintiff. It appeared on the trial that Brockhaus & Bradley were indebted to the plaintiff, or to the firm of which the plaintiff was a member, and the account was assigned to the plaintiff in payment or part payment of such indebted

ness.

It further appeared that the defendants held a note for several hundred dollars against Bradley, which was given for his individual debt before he became a partner of Brockhaus. Before the account was assigned to the plaintiff, Bradley made an agreement with the defendants to apply the balance due on the same in part payment of his note, and the amount of such balance was accordingly indorsed by them in installments on Bradley's note, pursuant to such agreement. Before such

agreement was made, Brockhaus was applied to by Bradley, and also by one of the defendants, for his consent thereto; but he refused to consent to the proposed arrangement. The facts above stated are proved by the undisputed evidence.

The testimony on behalf of the defendants tends to show that defendants rendered accounts from time to time to Brockhaus & Bradley of their mutual dealings; that the latter

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