
    
      August Term, 1876.
    Coad vs. Coad.
    Appeahancb. (1) What is a general appearance; its effect.
    
    Divorce. (2) Testimony reported by referee appointed in one county may be examined, and judgment signed, by court of any other county in same circuit. (3, í) Power of circuit court over judgment for alimony.
    
    1. A motion by defendant (based on the whole record in the case) to “set aside the findings of fact, conclusions of law and judgment,” is a general appearance, and waives all defects in the service of process, notwithstanding an attempt to limit the appearance by stating that it is “for the purposes of the motion only.” Blackburn v. Stoeet, 38 Wis., 578.
    2. Under ch. 38 of 1872, the circuit court for one county has authority to examine the testimony reported by a referee appointed by the circuit court for another county of the same circuit in an action for divorce commenced in the latter county, and to sign the judgment in such action.
    3. After judgment of divorce, the whole matter of alimony is under the plenary control of the circuit court, which, upon application therefor, can review and alter its judgment in that regard as may be deemed just.
    4. Where, therefore, the circuit court, on granting a divorce, divested the husband of the title to certain real estate constituting the homestead, and vested the fee simple thereof in the wife, together with all the household furniture, although, on the proof before this court, this appears to be an unreasonable allowance, a reversal or modification of the judgment in that respect is refused, on the grounds that the evidence in the record is not sufficient to enable this court to determine what should be awarded plaintiff for alimony, and that, the judgment being for alimony proper, the trial court is still competent to afford relief if injustice has been done.
    
      APPEAL from tbe Circuit Court for Iowa County.
    Action, by tbe wife, for divoi’ce, on tbe ground that tbe defendant, though of sufficient ability, bad willfully neglected to provide for her support or furnish her tbe common necessaries of life.
    The action was commenced in tbe Iowa county circuit court; tbe summons served by publication; an order of reference made at tbe June term of said court, 1874; and judgment of divorce upon tbe referee’s report, signed at tbe circuit court for La Fayette county, June 24, 1874. .
    Tbe evidence taken before tbe referee tended to show that defendant was tbe owner of a homestead in tbe city of Mineral Point, Iowa county, of tbe value of about $500; that be bad, in tbe year 1872, a stock of groceries which be sold for $1,000; and that be was possessed of household furniture to tbe value of about $230.
    Tbe judgment, besides dissolving tbe marriage, directed that tbe title to tbe homestead in fee be passed to tbe plaintiff, together with tbe household furniture.
    In September, 1874, tbe defendant, by bis attorneys, moved, upon “ tbe pleadings, papers on file and records in said action,” to set aside tbe findings of fact, conclusions of law and judgment. At tbe foot of tbe notice of motion, following tbe attorneys’ names, were added !the words: “For the purposes of said motion only.” Tbe motion was denied; and tbe defendant appealed from tbe order.
    Tbe written exceptions filed by defendant specify as errors that tbe court bad acquired no jurisdiction of defendant; that tbe findings of fact were not supported by testimony; and that the decree was neither ^ warranted by tbe testimony nor founded on tbe findings of fact and conclusions of law.
    Briefs were filed in the cause, by Gothren dk Zanyon for tbe appellant, and Reese <& Garter for tbe respondent; and there was oral argument by M. M. Gothren for tbe appellant, and Richard, Garter for tbe respondent.
    
      Counsel for tbe appellant contended
    tbat tbe summons was not properly served so as to give tbe court jurisdiction; and tbat tbe evidence did not support tbe complaint or warrant tbe judgment. On tbe question of alimony, tbey argued tbat tbe decree did not divide tbe property in tbe manner contemplated by tbe statute, but gave to tbe plaintiff all tbat defendant was shown to possess at tbe time; tbat it bad not been shown tbat she brought anything to tbe common fund, or tbat she was incapable of earning her own livelihood, or bad not separate property of her own; and tbat such a decree was more profitable to her than would have been tbe death of her husband, and was unjust. Williams v. Williams, 36 Wis., 362.
    Eor tbe respondent it was contended,
    tbat defendant, by a general appearance, bad waived any jurisdictional defects. Grantier v. Boseorance, 27 Wis., 488; Anderson v. Ooiurn, id., 558; Anderson v. White, 32 id., 308; Gray v. Gates, 37 id., 616; Keeler v. Keeler, 24 id., 525. 2. Tbat the court bad power to make equitable division of tbe property between tbe parties, and, if necessary, to pass tbe title to real estate (Donovan v. Donovan, 20 Wis., 586; Wilkie v. Wilkie, 28 id., 299; Williams v.WilUams, 36 id., 363); and tbat in this case it bad exercised a proper and reasonable discretion. 3. Tbat tbe judgment was properly signed in La Fayette county. Landon v. Burke, 33 Wis., 452.
    In reply, appellant’s counsel contended,
    1. Tbat their appearance was special, for tbe purposes of tbe motion only, and was therefore no waiver of jurisdictional defects. 2. Tbat there was no law making the general term of one county a special term for all other counties in tbe circuit, save in tbe case of motions and foreclosure judgments; that London v. Bwke, being of tbe latter class, was not in point; and tbat tbe judgment was improperly signed in La Fayette county.
   Cole, 3".

1. The attorneys of tbe defendant moved “ to set aside tbe findings of fact, conclusions of law and the judgment rendered in ” the action; which motion was based upon the pleadings, papers on file and records in the cause. Ilnder the decisions of this court, this was a general appearance in the cause, and waived all defects in the service of process. It is true, the attorneys attempted to limit the effect of their appearance by stating that it was “ for the purposes of said motion only;” but still it must be regarded as a general appearance. For the rule is, that when a party seeks to take advantage of a want of jurisdiction, he must object on that ground alone, and keep out of court for every other purpose. In Blackburn v. Sweet, 38 Wis., 578, the principle to be extracted from the decisions of this court is stated to be this: “ That a motion to set aside a judgment which is founded partly on the failure of the court to obtain jurisdiction of the moving defendant, and partly upon grounds of mere irregularities in the rendition of the judgment consistent with the fact of jurisdiction, and which imply its existence, amounts to a general appearance. That is, where the moving party asks some relief which can only be granted upon the hypothesis that the court has jurisdiction of the cause and of the person, this is a submission to the jurisdiction, and waives all defects in the service of process.” p. 580. (See also Fairfield v. The Madison Manuf’g Co., 38 Wis., 346; Gray v. Gates, 37 id., (514; Anderson v. White, 32 id., 308; Likens v. McCormick, 39 id., 314; Low v. Stringham, 14 id., 222, and cases referred to in the notes.) In moving to set aside the findings of fact and the conclusions of law, the defendant obviously assumes that the court has jurisdiction to correct errors and irregularities in the rendition of the judgment. This is plain. Having-submitted to the jurisdiction to obtain that relief, it amounted to a waiver of all defects in the service of process.

2. The defendant further insists that the findings of fact are unsupported by the evidence. The circuit court found, in substance, that all the material allegations of the complaint were time, and that the defendant had willfully neglected to provide the common necessaries 'of life for the plaintiff, having adequate means and being of sufficient ability so to do; and, upon that ground, granted the divorce. We have examined the evidence taken before the referee, and think it shows that the defendant willfully neglected to maintain and support his wife according to his ability. We shall not discuss the testimony, but content ourselves with stating our conclusion that it is sufficient to sustain the judgment of divorce.

3. There was a reference to take testimony, the referee reporting the same to the circuit court of Iowa county, where the action was pending. The judgment, however, was signed in La Fayette county. It is objected that the circuit court had no power or authority to sign a final jiidgment of divorce in any other county than the one in which the action was pending. This objection cannot prevail. Ch. 38, Laws of 1872, authorizes the circuit court, in all civil actions in which an issue of law or fact has not been joined within the time allowed by law, to hear the testimony and proofs offered i/n such actions, and to sign judgment therein, at any special or general term of court of the circuit. This provision clearly gave the circuit court of La Fayette county authority to examine the testimony reported by the referee in the action, and to sign the judgment. See London v. Burke, 33 Wis., 462.

4. The circuit court adjudged to the wife in fee simple the homestead, worth about $500, together with the household furniture. It is claimed that this was an unreasonable allowance, considering the defendant’s estate or faculties to support his wife. The evidence in regard to the amount of property owned by the defendant is not sufficiently clear and satisfactory, as it stands in the record, to enable us to determine what should be awarded the plaintiff for alimony. It is possible the amount allowed her was excessive, and it so appears to be on the proof before us. But this whole matter of alimony is under tbe plenary control of tbe circuit court, wbicb can revise and alter its judgment in that regard as may be deemed just, upon application being made tberefor. Sec. 28, ch. 111, R. S.; Campbell v. Campbell, 37 Wis., 206; Hopkins v. Hopkins, 40 id., 462. Tbe court did not attempt to make a division or distribution of tbe husband’s estate, as is sometimes done under tbe statute, but adjudged to tbe wife tbe homestead and household furniture as and for alimony proper. It was competent for tbe court to do this; but still tbe matter would be within its control. If any injustice has been done tbe defendant in tbe amount of alimony allowed tbe plaintiff, be can apply to tbe circuit court for relief.

By the Cowt. — Tbe judgment of tbe circuit court is affirmed.  