Kalb v. Feuerstein

• Decision Date: 07 May 1940
• Citation: 291 N.W. 840,234 Wis. 507
• Parties: KALB et al. v. FEUERSTEIN et al.
• Court: Wisconsin Supreme Court

234 Wis. 507

291 N.W. 840

KALB et al.

v.FEUERSTEIN et al.

Supreme Court of Wisconsin.

May 7, 1940.

Appeal from a judgment of the Circuit Court for Walworth County; Edgar V. Werner, Judge, presiding.

Action by Ernest Newton Kalb and another against Henry Feuerstein and another, to recover possession of plaintiffs' farm after it had been sold in foreclosure proceedings. From a judgment of the Circuit Court dismissing the complaint, plaintiffs appealed to the Supreme Court of Wisconsin, which affirmed the judgment, and the cause was removed to the United States Supreme Court. On rehearing conforming to mandate of the United States Supreme Court in 60 S.Ct. 343, 308 U.S. 433, 84 L. Ed. 370, reversing the judgment of the Supreme Court of Wisconsin in 231 Wis. 185, 285 N.W. 431.___[By Editorial Staff.]

Judgment of the Circuit Court reversed in accordance with mandate of the United States Supreme Court.

This case was here upon an appeal from a judgment of the circuit court for Walworth county, reported in, 1939, 231 Wis. 185, 285 N.W. 431. The judgment of the circuit court for Walworth county having been affirmed by this Court, the cause was removed to the Supreme Court of the United States. In that Court the judgment of this Court was reversed, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. The mandate of the Supreme Court of the United States having been received in this Court and judgment of reversal entered pursuant thereto, upon motion of the defendants, the cause was retained in this Court for the purpose of passing upon questions raised by the demurrer other than those considered on the first appeal, 1938, 228 Wis. 525, 279 N.W. 687, 280 N.W. 726.

Other facts will be stated in the opinion.

J. J. McManamy, of Madison, for appellants.

Moran & O'Brien, of Delavan, for respondents.

ROSENBERRY, Chief Justice.

The facts briefly stated are as follows: On March 7, 1933, in the county court for Walworth county, the defendants Feuerstein began a foreclosure on the farm of Kalb, the plaintiff. On April 21, 1933, judgment of foreclosure was entered. On October 2, 1934, the plaintiff filed a petition under the Frazier-Lemke Act (11 U.S.C.A. § 203, sub. s). On June 27, 1935, Kalb's petition was dismissed in the Federal Court. On July 20, 1935, the sheriff sold the premises in foreclosure. On August 2, 1935, sheriff's deed was delivered to the purchaser. On August 28, 1935, Congress passed the second Frazier-Lemke Act (Bankr.Act § 75, 11 U.S.C.A. § 203). On September 6, 1935, plaintiff's petition in the bankruptcy court was reinstated and on June 27, 1935, order was vacated. On September 9, 1935, a certified copy of this order was filed with the clerk of the county court. On September 16, 1935, the sheriff's sale was on due notice confirmed. On December 16, 1935, the county court on application of the Feuersteins issued a writ of...