A. J. Straus Paying Agency v. Terminal Warehouse Co.

• Citation: 264 N.W. 249,220 Wis. 85
• Parties: A. J. STRAUS PAYING AGENCY ET AL. v. TERMINAL WAREHOUSE CO. ET AL.
• Decision Date: 07 January 1936
• Court: United States State Supreme Court of Wisconsin

220 Wis. 85

264 N.W. 249

A. J. STRAUS PAYING AGENCY ET AL.

v.TERMINAL WAREHOUSE CO. ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1936.

Appeals from order of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.

Affirmed as to certain orders; dismissed as to others.

Action brought by the A. J. Straus Paying Agency and another, as the trustees under a mortgage, to foreclose a first lien on a ground rent leasehold of certain premises, and a second lien on a similar leasehold on adjoining premises, all of which were occupied by cold storage warehouses operated as a unit. The trustees under another mortgage, which was a first lien on those adjoining premises, filed a cross-complaint for foreclosure; and, upon issues joined in the action, judgment was entered for the foreclosure of both mortgages, and the period of redemption was fixed to expire on February 13, 1935.

During the pendency of the action, the owner of the leasehold interests and the equity of redemption, the Terminal Warehouse Company, was adjudged a bankrupt; and the trustee in bankruptcy sold its leasehold interest in one tract to the Watco Corporation, and in the other tract to the Ralco Corporation.

At the time of the entry of the foreclosure judgment the court, on plaintiffs' application, appointed Henry Mahoney as receiver of the entire premises, and authorized him to retain the plaintiffs' attorney, Harvey C. Hartwig, as his attorney, and to execute a certain lease for the premises to Edward D. Fryer, for a term expiring on March 31, 1935.

On February 15, 1935, the court, after hearings pursuant to orders to show cause, entered orders (1) extending the period of redemption under both mortgages to September 12, 1936; (2) enjoining, temporarily, the lessor in the ground lease from enforcing its rights by the termination thereof because of defaults thereunder; and (3) authorizing the receiver to execute a new agreement with Fryer for the extension of the term of his lease to January 31, 1937, and the modification of some of the terms and conditions thereof in other respects. The Watco Corporation and the Ralco Corporation appealed from those orders.

Subsequently, on June 28, 1935, the court, after hearings, entered orders adjudicating (1) the amount payable to the receiver, under the terms of the lease to Fryer, as net profits derived from the latter's operation of the mortgaged premises for the term ending March 31, 1935, and extending the time for the payment of that amount by Fryer; (2) the amount to which the receiver was entitled as compensation for his services; and (3) the amount to be paid by the receiver to his attorney, Hartwig, for services rendered up to April 1, 1935. The Watco Corporation and the Ralco Corporation also appealed from those orders.

Coleman & Barry, of Milwaukee, for appellant.

Harvey C. Hartwig and Henry Mahoney, both of Milwaukee, for plaintiffs and respondents.

FRITZ, Justice.

[1] The Watco Corporation and the Ralco Corporation are the only parties that appealed from the court's orders of February 15, 1935. In respect to the order which extended the period of redemption under the mortgages to September 12, 1936, and temporarily enjoined the lessor from terminating its lease, the transcript of the proceedings in court when that order was made on February 15, 1935, discloses that the attorney for the appellants then stated on the record, “At the hearing on February 12th defendant Watco Corporation and Ralco Corporation registered an objection to the granting of an extension of time on the Schroeder mortgage only. As far as the present order is concerned, the grant of extension of time on both mortgages, an extension of time as far as the restraining orders affect the Railroad Company, we have no objection.” By that statement, the appellants virtually consented to that order, and unconditionally waived all right on their part to object thereto. Consequently, they are not now entitled to a reversal thereof, and that order must be affirmed.

[2] In respect to the appeal from the order, made on February 15, 1935, which authorized the...