Andrews v. Welch

• Citation: 2 N.W. 98,47 Wis. 132
• Parties: WILLIAM ANDREWS, RESPONDENT, v. DAVID E. WELCH, IMPLEADED WITH W. W. ANDREWS, MAIR POINTON AND HANNAH WELCH, APPELLANT.
• Decision Date: 02 September 1879
• Court: Wisconsin Supreme Court

47 Wis. 132

2 N.W. 98

WILLIAM ANDREWS, RESPONDENT,

v.DAVID E. WELCH, IMPLEADED WITH W. W. ANDREWS, MAIR POINTON AND HANNAH WELCH, APPELLANT.

Supreme Court of Wisconsin.

Filed September 2, 1879.

Appeal from circuit court, Sauk county.Levi Cranch and Lewis, Lewis & Hale, for respondent.

Noyes Bros., for appellant.

TAYLOR, J.

This is an appeal from an order denying the appellant's motion for an order staying the sale of the mortgaged premises under the judgment rendered in this action. The only question to be determined upon this appeal is whether the respondent's notice of sale of the said mortgaged premises was premature.

The action was tried by the court, without a jury, at the March term, 1878. The findings of the court were dated April 5th, and filed July 12, 1878, and on July 12, 1878, a judgment was filed in the usual form, directing the sale of the mortgaged premises, except that there was a blank left in said judgment for the insertion of the costs of the plaintiff in the action. The costs were, in fact, taxed on the 14th day of April, 1879, and these inserted in said judgment, and thereupon the plaintiff caused said mortgaged premises to be advertised for sale, by virtue of said judgment, on the twenty-fourth day of May, 1879.

Section 3162, R. S. 1878, prescribes the form of the judgment to be rendered in an action to foreclose a mortgage, as follows: “In all such actions, if the plaintiff shall recover, the judgment shall fix the amount of the mortgage debt then due, and also the amount of each installment thereafter to grow due, and the several times when they will become so due, and shall adjudge that the mortgaged premises be sold for the payment of the amount adjudged to be then due, and of all installments which shall thereafter grow due before the sale, or so much thereof as may be sufficient to pay such amount for principal, interest and costs, including costs of sale, and when demanded in the complaint, an order directing that judgment be rendered for any deficiency against the parties personally liable therefor.” Then follows the following provision as to sale: “But no such sale shall be made until the expiration of one year from the date of such judgment or order of sale; and when judgment is for installments due and to grow due, and payment shall be made within the year of the installments found due at the date of the judgment, with interest and costs, no sales shall be made upon any installment growing due after the date of the judgment, until the expiration of one year after the same shall become due.”

We have no hesitation in holding that the judgment referred to in this section is the formal entry of the judgment by the court through its clerk, and not the making and filing the findings of fact and conclusions of law required to be made and filed by the judge before whom the action is tried. The judgment here referred to is the same judgment which, by the provisions of section 2879, R. S. 1878, the clerk is required to enter in the judgment book.

Section 2863, which prescribes that when the action is tried by the court its decision shall be given in writing and filed with the clerk within twenty days after the court at which the trial took place, very clearly distinguishes this decision from the judgment in the action. The section expressly says: “Judgment upon the decision shall be entered accordingly as at the term at which the cause was tried.” The findings of the court amount to nothing more than an order for judgment, and are not in themselves the judgment of the court. Sage v. McLaughlin, 34 Wis. 550, 557;Dean v. Williams, 2 Pin. 91;Lincoln v. Cross, 11 Wis. 94;Potter v. Eaton, 26 Wis. 382;Massing v. Ames, 36 Wis. 409.

The statutes, in speaking of the decision and findings of the court in a case tried without a jury, never speak of them as the judgment in the action, but as something precedent to such judgment; and these findings, both as to facts and conclusions of law, must be excepted to by the party seeking to take any advantage of errors in the same, otherwise they are conclusive against him. If, however, the findings are the judgment, then no exceptions ought to be required. It is the universal practice that errors appearing in the final judgment need not to be excepted to in order to take advantage of them upon appeal or writ of error. The court has held that if the judgment rendered is not sustained by the findings of fact, it will be reversed, though no exceptions be taken to such findings. If the findings are in fact the judgment, it would be difficult to find a reason for reversing a judgment, in such case. Blossom v. Ferguson, 13 Wis. 75, and cases...