Arkens v. Bykowski

271 Wis. 357 (1955)

ARKENS, Respondent, vs. BYKOWSKI, Appellant.

Supreme Court of Wisconsin.

November 10, 1955.

December 6, 1955.

*358 For the appellant there were briefs by Wickert & Fuhrman of Milwaukee, and oral argument by Harold H. Fuhrman.

For the respondent there was a brief and oral argument by Bernard N. Freudenfeld of Milwaukee.

FAIRCHILD, C. J.

The circumstances set out in the complaint may reasonably be construed to be that a cause of action arose within the year limited for the commencement of such an action. It is not timely under the state of the record before us to determine whether or not there had come to pass a complete ending of the relation which ordinarily exists between husband and wife. Although an action for divorce was pending during the month when plaintiff alleges the conduct on the part of the defendant occurred, there is reason on which to base the assumption "that the home of the parties would be re-established." We quote from the trial court's opinion, in which he says: "In cases of separation as well as those in which divorce actions have been commenced, there is *359 the ever continuing hope of the re-establishment of the home of the parties. Where an action for divorce has been commenced, the parties are not strangers to each other. The marital status continues until terminated by a proper judgment of divorce." He sustains the reasoning by reference to the opinion of Mr. Chief Justice RYAN in Campbell v. Campbell, 37 Wis. 206, 213, 214. We agree that the pleadings, in the form in which they are, present allegations that the alienation had not been accomplished more than a year prior to the commencement of the action. The overruling of the demurrer must be affirmed.

By the Court.Order affirmed.