66 N.W.2d 689

ABDELLA, Respondent, vs. ABDELLA, Appellant.

Supreme Court of Wisconsin.October 8, 1954 —
November 9, 1954.

APPEAL from an order of the county court of Lincoln county: MAX VAN HECKE, Judge. Affirmed.

Plaintiff commenced an action for divorce from her husband in the county court of Lincoln county in October, 1953. The complaint alleged that the plaintiff resided in the city of Stevens Point in Portage county and that the defendant resided at Friendship, Wisconsin, which is in Adams county. The defendant answered and counterclaimed for a divorce,

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and in his answer admitted the residence of the plaintiff as alleged in the complaint but alleged that defendant also was a resident of the city of Stevens Point. The complaint alleged that the defendant owned property of the value of approximately $28,500 in excess of mortgages thereon, and the answer admitted the ownership of property valued at something in excess of $25,000. The case was set for trial on January 27, 1954.

At the time set for trial the plaintiff did not appear in person. Her attorney did not make a showing entitling her to a continuance, and the trial court proceeded to hear the testimony of the defendant, and judgment granting the defendant a divorce, dated on the day of trial but filed by the clerk on February 8, 1954, was entered. The judgment provided for a division of property. On January 29, 1954, the defendant procured an order authorizing an amendment of his pleadings to allege that the value of the estate, both real and personal, of the defendant and so much of the, estate of the plaintiff as was derived from the defendant did not exceed in the aggregate the sum of $25,000. The plaintiff then procured an order returnable March 5, 1954, requiring the defendant to show cause why the judgment of divorce should not be vacated and set aside.

At the hearing the plaintiff challenged the jurisdiction of the court on the ground that the amount of property in controversy exceeded the sum of $25,000. It is conceded that the act of the legislature granting the county court of Lincoln county concurrent jurisdiction with the circuit court limited such jurisdiction to actions where the value of property in controversy, or the debt or balance due, or the damages claimed in the complaint do not exceed the sum of $25,000. The court concluded that it did not have jurisdiction as the amount in controversy as shown by the pleadings exceeded said sum. An order was then entered on March 22, 1954,

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vacating and setting aside the judgment of divorce and dismissing all proceedings in said action. The defendant appealed from that order.

For the appellant there was a brief by Graves Chambers
of Wisconsin Rapids, and oral argument by Lloyd, L. Chambers.

For the respondent there was a brief by Genrich Terwilliger, attorneys, and Emil A. Wakeen, Walter H. Piehler, and Neil M. Conway of counsel, all of Wausau, and oral argument by Herbert Terwilliger.

BROADFOOT, J.

An issue not presented to the lower court is raised for the first time upon this appeal, and it is determinative of the case. The 1945 statutes contained the following provisions:

“261.01 PLACE OF TRIAL. Except as provided in section 220.12 and subject to the provisions for change of venue the proper place of trial of civil actions is as follows: . . .

“(3) Action affecting marriage. Of an action for the annulment or affirmance of a marriage or for a divorce, the county in which either party resides.”

“261.02 PLACE OF TRIAL, GENERAL RULE. The county designated in the complaint shall be the place of trial, unless the same be changed as provided in this chapter, except that every action named in subsection (1) of section 261.01 can be commenced only in the county in which the property or some part thereof is situated.”

By ch. 227, Laws of 1947, sec. 261.02, Stats., was amended to read as follows:

“261.02 PLACE OF TRIAL, GENERAL RULE, EXCEPTIONS. The county designated in the complaint shall be the place of trial, unless the same be changed as provided in this chapter, except that every action named in section 261.01 (1) can be commenced only in the county in which the property or

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some part thereof is situated and that every action named in section 261.01(3) can be commenced only in the county in which either party resides in all cases in which the parties have minor children.”

This chapter was approved on June 9th and published on June 11, 1947. At the same session of the legislature sec. 261.01(3) was amended by ch. 383, Laws of 1947, to read as follows:

“(3) Action affecting marriage. Of an action for the annulment or affirmance of a marriage or for a divorce, the action must be commenced in the county in which either party resides.”

This chapter was approved July 10th and published July 14, 1947. Each amendment became effective on the day after its publication.

The two amendments by the 1947 legislature, in so far as they refer to parties without minor children, as is the case before us, are repugnant and irreconcilable. Under those circumstances the later-enacted statute prevails over and supersedes the earlier one in so far as that is so. Donovan v. Theo. Otjen Co. 238 Wis. 47, 298 N.W. 168. Thus, since the effective date of the amendment to sec. 261.01(3), Stats., all actions for the annulment or affirmance of a marriage or for a divorce must be commenced in the county in which one of the parties resides, subject to the statutory provisions for change of venue. Therefore, the county court of Lincoln county had no jurisdiction to entertain this action.

The defendant claims that, even though the court had no jurisdiction, it erred in vacating and setting aside the proceedings and says that under sec. 269.52, Stats., the court should have certified the action to the circuit court for Lincoln county. That court, however, would have no jurisdiction, as neither of the parties resided in Lincoln county. Even though we should concede that sec. 269.52 is applicable where the court in which an action is commenced is without jurisdiction

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of the subject matter, which we do not decide, the order dismissing the action was not prejudicial because the statute was not called to the attention of the trial court. Hicks v. Hardy, 241 Wis. 11, 4 N.W.2d 150.

By the Court. — Order affirmed.