Godfrey v. Wright

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Godfrey v. Wright, 151 Wis. 372, 139 N.W. 193 (Wis. 1912)
• Decision Date: 10 December 1912
• Parties: GODFREY v. WRIGHT ET AL.

151 Wis. 372

139 N.W. 193

GODFREY

v.WRIGHT ET AL.

Supreme Court of Wisconsin.

Dec. 10, 1912.

Appeal from Circuit Court, Milwaukee County; W. D. Tarrant and F. C. Eschweiler, Judges.

Mortgage foreclosure by Frances E. Godfrey against Walter H. Wright and wife and Laura W. Potter, in which a deficiency judgment was rendered in favor of Potter against Wright. From an order staying execution on the deficiency judgment, Potter appeals. Affirmed.

The order appealed from stayed execution on a judgment for deficiency in foreclosure proceedings and set such judgment aside.

May 18, 1901, plaintiff commenced an action in the circuit court for Milwaukee county, making the debtor and mortgagor, Walter H. Wright, and Laura W. Potter, a second creditor and mortgagee of Wright, defendants. The complaint was in the usual form and was served upon defendants. The debtor did not appear. Laura W. Potter answered; admitting the allegations of the complaint, but claiming she was not holder of the legal title, although her interest was created by deed, in form; that it was given to secure Wright's indebtedness to her of $1,025.71. She asked for judgment protecting the rights of all parties. The answer was not served upon Wright. The court found facts requisite to a judgment of foreclosure in plaintiff's favor; also found facts in harmony with the answer of Laura W. Potter, and determined that, in case of a surplus arising from the sale to collect plaintiff's claim, she was entitled thereto on her claim. Judgment was so rendered and fixing the amount of the indebtedness to Laura W. Potter and providing for the payment of the surplus, if any, to her. The sheriff reported a deficiency to the amount of the indebtedness to her. The notice of motion to confirm the report was not served on Wright, but was on the attorney for defendant Potter. The report was confirmed and judgment for deficiency ordered in her favor. Wright had no notice thereof until a short time prior to January 24, 1912. He then notified Laura W. Potter that her judgment was void and demanded a release thereof. She refused, whereupon he moved the court, on affidavit setting forth the facts, for an order perpetually staying execution and setting the judgment aside. Both motions were heard together and granted with the usual costs. Laura W. Potter appealed.Otjen & Otjen, of Milwaukee, for appellant.

Lawrence Olwell, of Milwaukee, for respondent.

MARSHALL, J. (after stating the facts as above).

The order must be affirmed, not because a case was made of “mistake, inadvertence, surprise or excusable neglect” under section 2832, Stats. 1898, which counsel for appellant seems to think was required; but because the judgment was void for want of jurisdiction to render it.

[1][2] No foundation was laid for a judgment for deficiency against Wright in favor of his co-defendant. No such judgment was ordered in the original decree. That was a necessary condition precedent. No service of Laura W. Potter's answer was...