Magnuson v. Clithero

• Decision Date: 10 January 1899
• Citation: 77 N.W. 882,101 Wis. 551
• Parties: MAGNUSON v. CLITHERO ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 551

77 N.W. 882

MAGNUSON

v.CLITHERO ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Sara Magnuson against Electa Clithero and others to foreclose a mortgage. A judgment by default was vacated on the application of the mortgagor, and from a judgment in favor of the mortgagor plaintiff appeals. Reversed.

A judgment of limited divorce was granted between Sara Magnuson and Elias Magnuson at the suit of the former. Service upon the defendant was by publication. There was no appearance by the defendant. The order of publication was based on a complaint setting forth a cause of action for divorce on the ground of desertion, and also for failure to support, none of the allegations being on information and belief, and the verification being in the form prescribed by statute, omitting the words as to personal knowledge of the truth of the allegations. By the judgment a final division of defendant's property was attempted to be made between the parties, and it was subsequently found that a certain mortgage, and the debt thereby secured, awarded to Sara Magnuson, being the mortgage here in suit, was so described as not to be clearly conveyed by the judgment. More than a year after the entry of the divorce judgment an independent action was commenced by Sara Magnuson against her divorced husband, in which the mortgagor, respondent here, was made a defendant for the purpose of correcting the judgment of divorce, so as to correctly describe the mortgage. Service on Magnuson was made and jurisdiction as to him was obtained by publication of the summons. The complaint set forth that it was intended by the divorce judgment to transfer to plaintiff the mortgage in question; that it was incorrectly described therein; and that the notes and mortgage were in the possession of the plaintiff and claimed by her as her property. The prayer, among other things, was that the rights of all the parties might be ascertained, adjudged and enforced, and that the divorce judgment might be amended to correspond with the facts. The court found the facts in accordance with the allegations of the complaint and rendered judgment directing the divorce judgment to be amended accordingly, and further, in substance, that plaintiff was authorized and empowered to foreclose the mortgage in all respects as if it and the notes were made to her originally. Subsequently plaintiff commenced this action to foreclose the mortgage, making Elias Magnuson a party, and obtained jurisdiction as to him by publication. Judgment was obtained by default. In about five months thereafter the mortgagor applied for leave to answer on an affidavit setting forth that she did not answer within the time allowed therefor, putting in issue plaintiff's title to the notes and mortgage, because she supposed, and had good reason to suppose, stating the facts, that the amended divorce judgment vested title to the property in plaintiff; that promptly upon being informed to the contrary she applied to the court to vacate the foreclosure judgment and to be allowed to come in and litigate the question of title. The motion was granted and issue was joined between the plaintiff and the mortgagor as to...