Kremer v. Sponholz

• Decision Date: 07 November 1906
• Citation: 109 N.W. 527,129 Wis. 549
• Parties: KREMER ET AL. v. SPONHOLZ ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 549

109 N.W. 527

KREMER ET AL.

v.SPONHOLZ ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by John Kremer and others, as executors of the will of Valentine Blatz, against Emil A. Sponholz and others. From an order refusing to open a default judgment against defendants and permit a defense to be interposed, they appeal. Affirmed.

Appeal from an order of the circuit court for Milwaukee county refusing to open a default judgment and permit a defense to be interposed.

The defendants in 1892 borrowed $7,375.15, in one sum and $650.00, in another, giving their promissory notes therefor and securing each by a mortgage on real estate occupied by them for some years prior to the foreclosure proceedings hereafter mentioned. Valentine Blatz acquired said securities and subsequently died. Some two years thereafter and in February, 1896, the circumstances being such that the mortgages were subject to foreclosure, an action was commenced to that end by the executors of the last will and testament of said Blatz, the summons being personally served, as indicated by the record, by a person not an officer. Such proceedings were thereafter had in such action that in March, 1896, a judgment of foreclosure and sale and providing in case of a deficiency for a personal judgment against the defendants, was rendered, the amount of the claim against defendants being adjudged to be $8,562.82. Later and in due time such proceedings were had to enforce said judgment that the mortgaged property was sold at public sale to the plaintiffs for $6.500.00, they making but one and the only bid at the sale. On May 15, 1897, thereafter judgment for deficiency was in due form rendered against the defendants for $2,688.48. No notice of the entry of the judgment was given to said defendants. In March, 1905, finding their property, upon which they desired to obtain a loan, to be incumbered by such last-mentioned judgment they moved the court to vacate the foreclosure proceedings upon the ground that the summons was never served upon them. The motion was heard on affidavits and denied and the order was not appealed from. A motion was thereafter made to set aside the foreclosure judgment and for permission to defend. Such motion was heard on a proposed answer, affidavits and oral testimony. In such answer, for a defense there were allegations to this effect: An agreement was made between the said Valentine Blatz and the defendants that in consideration of a surrender of the mortgaged property without costs to him and without foreclosure proceedings and payment of an indebtedness of defendant Emil A. Sponholz, which he owed for beer, defendants might remain in possession of the premises till their new house was done, which was in process of being erected, and that no further claim should be made on the mortgage indebtedness, but that the notes and mortgages should be surrendered up and canceled and the mortgages discharged of record, and that pursuant to such agreement the indebtedness for beer was paid and the property was surrendered. Defendants have always been ready and willing by a proper conveyance to vest the title to the mortgaged property in said Blatz, or his legal representatives or assigns. At the time of the foreclosure sale the property was worth $13,000.00, and was worth at the time of making the answer a sum in excess of the mortgage indebtedness and costs, and was of the rental value of $600.00 per year.

The affidavits used on the motion placed the value of the property at the time of the foreclosure sale at from something less than the amount due on the foreclosure judgment to several thousand dollars in excess thereof. Some of them tended to show that the value was greater at the time of the commencement of this proceeding than at the time of such sale. There was oral testimony by the defendant Emil A. Sponholz to the effect that the new house spoken of in the complaint was in process of erection in 1897 at the time of the foreclosure sale; that he did not know anything about the foreclosure judgment or the judgment for deficiency till March, 1905; that knowledge thereof came to him as stated in the proposed answer; that he moved out of the mortgaged premises pursuant to a mutual understanding with a Mr. Fricke, agent for the plaintiffs, that he should surrender the same but should be permitted to stay until the house should be finished; that it was not because of any judgment that he surrendered the property; that he knew of none. Both defendants testified that no summons was served on them in the foreclosure suit.

There was testimony in opposition to the motion that on January 31, 1896, a letter was in due course sent to the defendant Emil A. Sponholz on behalf of plaintiffs to the effect that the former's proposition to turn over the mortgaged property in settlement of the...