Ogden v. Bradshaw
| Decision Date | 12 January 1915 |
| Citation | 150 N.W. 399,161 Wis. 49 |
| Parties | OGDEN v. BRADSHAW. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.
Action by Francis A. Ogden against Peter Edes Bradshaw to recover damages for the breach of a promissory note and of the covenant to pay the note contained in a mortgage given to secure the same, and also to foreclose the mortgage. Judgment for the plaintiff for the amount of the debt, and also for foreclosure and sale of the mortgage, and defendant appeals, contending, among other things, that the judgment granted inconsistent relief, and that plaintiff should have been required to elect upon which cause of action he desired to recover. Judgment affirmed.Grace, Hudnall & Fridley, of Superior, for appellant.
Luse, Powell & Luse, of Superior, for respondent.
[1] The plaintiff in his complaint set forth two separate causes of action,the first at law for damages on a note and on a covenant of payment thereof found in the mortgage and on a breach of the covenant to pay taxes contained in the mortgage. The second cause of action was the ordinary complaint for foreclosure of a mortgage and sale of the mortgaged premises, not, however, seeking judgment for deficiency. No objection was made to the form of the complaint by demurrer, motion, or otherwise; but the defendant made answer to the merits and went to trial on such pleadings. There was not even a request made to the circuit court that the ordinary judgment of foreclosure and sale should be rendered. No exception to the form of the judgment was taken, and exceptions to the findings of fact and conclusions of law were not made until 30 days after judgment, and do not cover this point. The appellant now seeks to raise for the first time in this court the question whether the ordinary judgment of foreclosure and sale should not have been given. This cannot be done. The judgment given follows the pleading. The jurisdiction of the court to render a judgment for damages, or its jurisdiction to foreclose a mortgage without making provision for a deficiency judgment, is unimpaired. Each pertains to the general common-law and equity jurisdiction derived by the circuit court from the Constitution. If it be said that all foreclosure actions must proceed under this statute, the answer is that tacit consent, by failure to take any exception to the proceeding or make any request for such judgment, waives all objection, except that the court lacked jurisdiction or that the complaint states no cause of action. Section 2654, Stats. 1913. Neither of the two latter objections is made, or can be made, in the instant case. The plaintiff could have brought separate actions to achieve what he has here done in one action, and it is no serious invasion of defendant's rights that the result was accomplished in one action, instead of two. Perhaps this is why the defendant did not ask for any other judgment. For the law where objection is taken, see Jesup v. Bank, 14 Wis. 331;Endress v. Shove, 110 Wis. 133, 85 N. W. 653.
[2] The appellant contends that the judgment for damages is unwarranted, because an action on the note was barred by the six-year statute of limitations. This is true; but the mortgage, which is under seal, contains the following covenant:
“And the said party of the first part, for himself and his heirs, executors, administrators, and assigns, hereby covenants and agrees to and with the said party of the second part, his heirs, executors, administrators, and assigns, as follows, to wit: That he will pay to the said party of...
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...even if an action on the underlying note is barred. See First Nat'l Bank of Madison, 247 Wis. at 467, 19 N.W.2d 908;Ogden v. Bradshaw, 161 Wis. 49, 150 N.W. 399, 400 (1915). Accordingly, I conclude that UCB's motion for summary judgment should be granted as to Counts II and III. However, th......
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Bank of N.Y. Mellon v. Klomsten
...the mortgage is barred by the statute of limitations, has been well established by the decisions of this court."); Ogden v. Bradshaw , 161 Wis. 49, 53, 150 N.W. 399 (1915) ("It has also been ruled in numerous cases in this state that after the statute of limitations has run against the ... ......
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