Milwaukee Mut. Loan & Bldg. Soc. v. Jagodzinski

• Citation: 54 N.W. 102,84 Wis. 35
• Court: Wisconsin Supreme Court
• Decision Date: 10 January 1893
• Parties: MILWAUKEE MUT. LOAN & BLDG. SOC. v. JAGODZINSKI ET AL.

84 Wis. 35

54 N.W. 102

MILWAUKEE MUT. LOAN & BLDG. SOC.

v.JAGODZINSKI ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by the Milwaukee Mutual Loan & Building Society against Jacob Jagodzinski and another to foreclose a bond and mortgage. There was a judgment by default for plaintiff, and on defendants' motion the judgment was vacated. From the order vacating the judgment, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This is an action to foreclose a bond and mortgage executed by the defendants to the plaintiff, a corporation organized under Rev. St. c. 93, as a loan and building society, to receive payments and make loans to its members, and divide the profits, as provided by law. The defendant Jacob Jagodzinski became a member of the corporation, and obtained the loan from it of $2,400, June 1, 1887, for which the bond and mortgage in question were given, and it was claimed in and by the complaint that $2,829.20 was due. The summons, without a complaint, was served on the defendants February 19, 1891, and judgment was rendered as on default, they having failed to appear. There was the usual proof of no answer or appearance, of filing lis pendens, and a reference to ascertain the amount due to I. Czerwinski, clerk of the court, but the report was signed, “Ignatz Czerwinski, Referee. By Max Gerlach, Deputy Clerk,” dated June 19, 1891, and stated the amount due for various items, principal sum, interest, insurance, taxes, etc., at $2,924.16, for which, with costs, judgment was rendered in the usual form, June 20, 1891. Pending the action, March 31st a receiver of the mortgaged premises had been appointed, without notice to defendants, to take possession of and rent the mortgaged premises, and after judgment upon notice the said receiver was reappointed, July 22, 1891; and on the 19th of the following month he made complaint to the court against the defendant Jacob Jagodzinski for contempt of court in obstructing him in the discharge of his duties, for which the court imposed a fine and costs, November 16th, amounting to $37.25. November 29, 1891, the defendants filed their verified petition, praying that the judgment and all proceedings subsequent to the complaint be set aside and vacated, and they be allowed to interpose a proposed answer, which accompanied the petition, and for such other and further relief, etc., upon the grounds (1) that the report of the referee was not made by I. Czerwinski, but by one Max Gerlach; (2) that no notice of entry of judgment was ever served or given to them; (3) that in the judgment it is ordered that judgment of deficiency be rendered against both defendants for the amount thereof, and that the plaintiff have execution therefor, when the petitioner, Jacob Jagodzinski, alone signed the bond; (4) that there is no provision in the judgment as to whom the rents and profits of the premises shall belong; that the premises are their homestead, and that they claimed them as such; and that the order appointing a receiver was made without jurisdiction or authority; and alleged generally that all of the proceedings subsequent to the complaint were irregular and void, and should be set aside, as well as the order punishing Jacob Jagodzinski for contempt of court. The petition further stated that up to the time therein stated they were wholly ignorant as to the true status of the case, and “the reason why they had not sooner appeared to defend the action on the merits was that they were informed by one F. J. Borchardt, an attorney at law residing in the city of Milwaukee, that they had no defense to said action; that it was unnecessary for them, and would make them unnecessary costs and expenses, if they appeared to defend therein;” that no complaint or notice of object of action was served on either of them, and they had no knowledge of the true amount claimed until after judgment, and until they learned from John J. McAuliffe, an attorney retained to resist the contempt proceedings, that the defendant Wanda had a dower interest in the premises, and signed the mortgage for the purpose of releasing her dower and homestead rights, and none other. The answer of Jacob Jagodzinski admits the execution of the bond and mortgage, but denies that he received $2,400 on it, or any sum other than $1,989; that he paid to the plaintiff thereafter $407.15, leaving “a balance of principal of $1,581.85, for which he is personally liable, together with the lawful interest, unpaid taxes, and insurance, and for nothing else;” and denied each and every allegation of the complaint, except as admitted, qualified, or explained; and was verified and accompanied by an affidavit of merits in the usual form, sworn to November 27, 1891, by the defendant Jacob Jagodzinski. The matter embraced in the petition was brought on for hearing by an order to show cause, upon hearing which the court ordered that the judgment in the cause be set aside and vacated; “that all other proceedings in the action, subsequent to the service and filing of the summons therein, be set aside and vacated; that the defendants have twenty days after personal service upon them of a copy of the plaintiff's complaint herein to appear and serve their answer, or...