Kling v. Sommers

• Decision Date: 17 February 1948
• Citation: 252 Wis. 217,31 N.W.2d 206
• Parties: KLING et ux. v. SOMMERS et al.
• Court: Wisconsin Supreme Court

252 Wis. 217

31 N.W.2d 206

KLING et ux.

v.SOMMERS et al.

Supreme Court of Wisconsin.

Feb. 17, 1948.

Appeal from an order of the Circuit Court for Outagamie County; M. B. Eberlein, Judge.

Appeal dismissed.On or about February 26, 1942, William Kling and Elda Kling, his wife, brought an action to foreclose a certain real estate mortgage made and executed by the defendant William J. Sommers upon a funeral home in the Village of Hortonville. William J. Sommers, the defendant, appeared by counsel and the usual judgment of foreclosure was entered on March 30, 1942.

On July 19, 1942, Sommers entered the armed forces of the United States and remained therein until his discharge on December 30, 1945. On July 2, 1943, the mortgaged premises were sold by the sheriff pursuant to the judgment entered on March 30, 1942, at public sale to the defendants Arnold Borchardt and Lawrence Moder. On July 26, 1943, the sale was confirmed by order of the court and the sheriff's deed to the premises was duly executed and delivered to the defendants Borchardt and Moder, who have ever since claimed to be the owners of the mortgaged premises. On March 30, 1946, following his discharge from military service, Sommers made a motion in the circuit court for Outagamie County to have the confirmation of said sale made July 26, 1943, and the sheriff's deed issued thereon vacated and set at nought, and that the defendant Sommers be granted an enlarged time for the redemption of the mortgaged premises from the foreclosure judgment. A formal order was entered July 1, 1946, denying the defendant's motion. On July 2d counsel for Sommers moved for a ‘retrial and extended trial’ of the matter because of certain errors alleged to have occurred upon the hearing before Judge Murphy. On July 5, 1946, the court on its own motion vacated and set aside its previous order denying Sommers' motion. The matter was thereafter brought on for hearing before the court, M. B. Eberlein, Judge presiding, and an extended trial was had of the issues and considerable testimony was offered on both sides. The court rendered its decision on May 7, and on June 7, 1947, the court made findings of fact and conclusions of law and entered final determination which was denominated an order and which in terms denied the several motions of Sommers made on March 30, 1946.

Service of notice of entry of this order was admitted in writing by Sommers' counsel on June 12, 1947. On or about September 2nd a bill of exceptions was proposed on behalf of Sommers and was settled by stipulation of the parties. No further proceedings looking toward an appeal were taken or attempted until November 4, 1947, at which time in accordance with the provisions of Sec. 274.04, Wis.Stats., the time for appeal had expired.

On December 12, 1947, the plaintiff moved to dismiss the appeal on the ground that the same was not taken within the time limited by law.

John E. O'Brien, of Fond du Lac, for appellant.

Benton, Bosser, Becker, Parnell & Fulton, of Appleton, for respondents.

ROSENBERRY, Chief Justice.

The motion to dismiss was argued orally and briefs were submitted by the parties. The question for decision is: Was the determination of June 7, 1947, which denied defendant's motion, a judgment or an order? A considerable amount of argument was indulged in on the hearing, involving the right of the trial court to proceed with the foreclosure of the mortgage and confirmation of the sale on the ground that under the Soldiers' and Sailors' Relief Act, 50 U.S.C.A.Appendix,...