Loehr v. Stenz

• Decision Date: 05 November 1935
• Parties: LOEHR v. STENZ.
• Court: Wisconsin Supreme Court

219 Wis. 361

263 N.W. 373

LOEHR

v.STENZ.

Supreme Court of Wisconsin.

Nov. 5, 1935.

Appeal from an order of the Circuit Court for Fond du Lac County; C. M. Davison, Judge.

Action by Louise Handt Loehr against Leo N. Stenz and others, wherein named defendant filed a cross-complaint. From an order denying named defendant's motion for summary judgment, named defendant appeals.--[By Editorial Staff.]

Affirmed.

This was an action commenced on April 27, 1935, by Louise Handt Loehr, plaintiff, against Kristian Peterson, Mathilda Peterson, W. J. Nuss Lumber & Supply Company, Moore & Galloway Lumber Company, and Leo N. Stenz, defendants. The action sought the foreclosure of a land contract. The answer denied title in plaintiff and alleged the title to be in the defendant Stenz by virtue of a tax deed. Stenz filed a cross-complaint asking to have title established in him under this deed. The second cause of action in the cross-complaint asks for foreclosure of a mechanics' lien in case title was not established in Stenz. The reply by plaintiff put in issue the validity of the tax deed, upon the grounds that no notice was served upon plaintiff as required by section 75.12, Stats. Plaintiff thereafter moved to amend the complaint to foreclose the instrument as a mortgage rather than as a land contract. This motion was granted. A motion was then made for summary judgment to establish the title in Stenz. This motion was denied. Defendant Stenz appeals. Such facts as are necessary to an understanding of the questions involved will be stated in the opinion.Sutherland, Hughes & Sutherland, of Fond du Lac, for appellant.

T. L. Doyle, of Fond du Lac, for respondent.

WICKHEM, Justice.

The complaint alleges that plaintiff, being the owner of a certain lot in the city of Fond du Lac, entered into a contract with the defendant Kristian Peterson, which provided in substance that Peterson should pay $2,650, with interest, taxes, etc., on a certain date, the title to remain in plaintiff until full compliance by defendant Peterson. The complaint alleges default, and prays for a judgment ordering said Peterson to pay the amount due on or before a day certain, to be named by the court, and in case of default in making such payment, that he be forever barred and foreclosed of his rights, and that all parties holding under him be likewise barred and foreclosed. The complaint, in other words, is for the strict foreclosure of the land contract. The contract provides: “It is definitely understood * * * that the same is a land contract and not in any sense an instrument given to secure the payment of money and that in the event of foreclosure, strict foreclosure proceedings are to be followed and none other.”

The answer of Stenz in setting up the tax deed brought into materiality section 75.12, which provides that “whenever the records in the office of the register of deeds show that any lot or tract of land is incumbered by an unsatisfied mortgage and show the post-office address of the mortgagee or if the same has been assigned, the post-office address of the assignee, such deed shall not be issued unless a written notice shall have been served upon the owner or upon such occupant and upon such mortgagee.” It was the claim of Stenz that at the time he applied for a tax deed there was no mortgage or record showing that the plaintiff in this action had any mortgage interest. It is the position of plaintiff that since in fact plaintiff had loaned money to the Petersons, accepted a deed, and then executed a land contract to the Petersons, her position is that of a mortgagee. Osipowicz v. Furland (Wis.) 260 N. W. 482. The complaint was amended to state a cause of action for foreclosure of a mortgage. In this state of the record, plaintiff asserts that she is within the provisions of section 75.12, and that the tax deed is void for failure to give the notice there prescribed.

The first contention is that the order is not appealable. The order denying the motion was entered March 29, 1935. At that time an order denying a summary judgment was not appealable. Chapter 39, Laws 1935, went into effect April 25, 1935. It amended section 274.33 by adding to the section defining those orders from which an appeal may be taken, an order which “denies an application for summary judgment.” The appeal was perfected on the 26th of April, 1935, which was within thirty days from the entry of the order. It is contended that this statute is not expressly made retroactive, and that it should be construed not to be retroactive.

[1] It is unnecessary, however, that chapter 39, Laws 1935, be construed as retroactive in order to sustain defendant's right to appeal. Defendant is within the express terms of sections 274.04 and 274.33, having taken an appeal within thirty days from the service of notice of entry of the order. To hold the order nonappealable would require a strained and illiberal construction of a remedial statute, since when the amendment went into effect there was still time within which defendant could satisfy the conditions of the statute. The...