Witter v. Neeves

• Decision Date: 13 January 1891
• Parties: WITTER v. NEEVES ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 547

47 N.W. 938

WITTER

v.NEEVES ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from circuit court, Brown county.C. W. Briggs, ( Stark & Sutherland, of counsel,) for appellants.

George L. Williams, ( Gardner & Gaynor, of counsel,) for respondent.

ORTON, J.

The respondent commenced an action to foreclose the mortgage given to secure a note of $10,000 against the appellants in August, 1889, and obtained the usual judgment therein in January, 1890. In October, 1889, the respondent commenced an action at law against the appellants on said note, and they pleaded the foreclosure judgment in bar. The court found that the judgment of foreclosure was not a bar to this action, and renered judgment in the action on the note. On this appeal the only question is whether the plea ought to have been sustained. We are compelled to answer that question in the affirmative, and hold that the foreclosure judgment is a bar to this action. The question is not whether, pending the foreclosure action, in which no other relief or remedy is asked than the foreclosure of the mortgage, an action at law may be brought on the obligation or debt secured by the mortgage. It is clear enough in common reason and by the authorities cited by the learned counsel of the respondent that in such a case the action at law may be brought before, at the same time, or after the foreclosure action. Such actions would not be inconsistent with each other. The causes of action and the remedies are not the same. In the foreclosure action the respondent accepted the advantages of the statute, (section 3156, Rev. St.,) and in his complaint, united with his claim for a foreclosure and sale, a demand for judgment for any deficiency which may remain due to him after sale of the mortgaged premises. This makes the remedy in the foreclosure actioneven broader, fuller, and more complete than in the action at law. All the remedy he can possibly have in the action at law he can have in the foreclosure action. It is literally uniting in the same action the equitable and the legal cause of action. While the respondent was pursuing his legal remedy on the note in the foreclosure action, he brought this action at law to obtain the same relief. He need not have united his demand for a judgment for any deficiency, and then he could have pursued his legal remedy in another action; but he has done so, and must take the consequences. This question depends upon general principles well known, and our own statute and decisions. We can obtain no aid from decisions under a different statute of foreclosure. The plea is a former recovery, and, to obtain, there must be a final judgment or order determining the rights of the parties in the action of foreclosure in respect to the note as a separate cause of action. “A judgment is the final determination by a court of justice, of the rights of the parties in the action.” Section 2882, Rev. St.; Blaikie v. Griswold, 10 Wis. 293. “The judgment, decree, sentence, or order of a court having jurisdiction is conclusive.” Jackson v. Astor, 1 Pin. 137. The statute seems to be plain in respect to the nature and effect of the judgment for the deficiency in the foreclosure action. Section 3156, Rev. St., provides--(1) that a judgment for the deficiency may be demanded in the complaint; (2) “such judgment shall be ordered in the original judgment;” (3) “it shall be rendered against the party liable on or after the coming in and confirmation of the report of sale, and be docketed and enforced as in other cases.” Section 3162 provides: (1) “The judgment shall fix the amount of the mortgage debt then due;” (2) “and shall adjudge that the mortgaged premises be sold,” “and an order directing that judgment be rendered for any such deficiency.” The meaning of this statute is...