State ex rel. Hammer v. Williams

• Decision Date: 06 December 1932
• Citation: 209 Wis. 541,245 N.W. 663
• Parties: STATE EX REL. HAMMER ET UX. v. WILLIAMS ET AL.
• Court: Wisconsin Supreme Court

209 Wis. 541

245 N.W. 663

STATE EX REL. HAMMER ET UX.

v.WILLIAMS ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Appeal from a judgment of the Circuit Court for Rusk County; James Wickham, Circuit Judge.

Affirmed.

Upon the petition of P. H. Hammer and Isabelle Hammer a writ of certiorari issued out of the circuit court for Rusk county on the 9th day of September, 1930, directed to G. H. Williams, as judge, and Lucille A. Blaire, as clerk, of the county court of Rusk county, commanding them to certify to said circuit court all of the proceedings had in said county court upon which a judgment rendered in said county court in favor of Emma M. Ellingson and against said petitioners P. H. Hammer and Isabelle Hammer was founded. From a judgment of said circuit court quashing said writ of certiorari entered on the 11th day of April, 1931, the petitioners appeal.W. K. Parkinson, of Phillips, for appellants.

Carow & Goodsitt, of Ladysmith, for respondents.

OWEN, J.

On the 8th day of October, 1929, Emma M. Ellingson, plaintiff, commenced an action against P. H. Hammer and Isabelle Hammer, his wife, in the county court of Rusk county to foreclose a certain mortgage on real estate lying and being in the county of Price, in this state. On that day the summons and complaint in foreclosure were served on the defendants named therein, the petitioners here. The defendants, petitioners here, made no appearance in that action. On the 3d day of December, 1929, an affidavit of no answer was filed with the court, and a judgment in foreclosure pursuant to the complaint was rendered.

The county court of Rusk county had no jurisdiction of an action to foreclose a mortgage on property lying in Price county, nor to render judgment therein under the provisions of sections 261.01 and 261.02, Stats., which provide that an action to foreclose a mortgage shall be commenced only in the county in which the property or some part thereof is situated, and as to such actions no other court shall have jurisdiction thereof unless commenced in a proper county. This provision was incorporated into our law by chapter 494, Laws 1929, published on September 14th of that year. It is to be assumed that neither the court nor the attorneys for the plaintiffs knew of this statutory provision when the judgment of foreclosure was entered on December 3, 1929. On December 24th the court amended the judgment of foreclosure by according to the plaintiffs a judgment for the sum of $2,857.48, damages, together with $37.11 for costs and disbursements, amounting in the aggregate to the sum of $2,894.59, this, apparently, being the amount due on the notes secured by the mortgage. The writ of certiorari was obtained with a view of attacking the latter judgment as being without the jurisdiction of the court and absolutely void. The contention is that, as the county court had no jurisdiction of the action to foreclose the mortgage on lands lying in Price county, it had no jurisdiction to render judgment for the amount of the indebtedness which that mortgage was given to secure.

[1] It is perfectly plain that the foreclosure judgment was without jurisdiction and void. The court evidently discovered this, and substituted another judgment for the recovery of damages merely. It is plain that the rendition of the latter judgment was just as irregular under the provisions of section 270.57 which provides that “the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.”

In Good v. Schiltz, 195 Wis. 481, 218 N. W. 727, 728, in discussing this statutory provision, the following language from Northern Trust Co. v. Albert Lea College, 68 Minn. 112, 71 N. W. 9, was quoted approvingly: “The reason and fairness of this statutory rule, which is practically the old equity rule, is obvious. The defendant by his default submits, without contest on his part, to the court, only the claim of the plaintiff for the relief prayed in the complaint. But if a different or greater relief were demanded, he might appear and contest it as unjust; hence the statute wisely limits the power of the court in awarding judgment by default to that asked for in the complaint, to the end that the defendant may safely omit to appear in cases where he is willing to submit to the court, without contest, the claim of the plaintiff to the specific relief invoked in his complaint.”

It is the contention of the petitioners that the judgment attacked is utterly void as without the power of the court to render because of the statutory provision limiting the relief which may be awarded the plaintiff to the relief prayed for in the...