Welp v. Gunther
| Decision Date | 24 February 1880 |
| Citation | 4 N.W. 647,48 Wis. 543 |
| Parties | WELP v. GUNTHER and wife |
| Court | Wisconsin Supreme Court |
Argued February 10, 1880
APPEAL from the Circuit Court for Grant County.
The defendants appealed from a judgment in plaintiff's favor. The case is stated in the opinion.
Reversed and the cause remanded.
The cause was submitted on the brief of Barber & Clementson for the appellants, and that of A. W. Bell for the respondent.
This is an appeal from a judgment in an action to foreclose a mortgage. The judgment was entered after the R. S. 1878 took effect.
The errors relied on by the appellants for the reversal of this judgment appear in the judgment itself. The first is, that a personal judgment is rendered in favor of the plaintiff against Joseph Gunther, who is personally liable for the debt secured by the mortgage, for the whole amount of such debt. The second, that the judgment provides that after the sale is made, if the sum realized thereby shall be insufficient to pay the debt and costs, the sheriff shall certify such deficiency in his report of sale, and that upon filing such report the clerk of the circuit court shall credit the amount realized from such sale, after deducting the costs of sale, upon the personal judgment, and that the plaintiff have execution for the balance unpaid; and the third, that the judgment directs that the purchaser at such sale be let into possession of the premises sold, on the production of the sheriff's deed or a duly authenticated copy thereof.
The action was commenced before the R. S. 1878 took effect, and the plaintiff's attorney had the judgment entered in strict conformity to chapter 143, Laws of 1877, which was in force at the time the action was commenced. See sections 1, 2 and 7 of said chapter 143. But the judgment was not entered until the R. S. 1878 took effect, and until after said chapter 143 had been repealed. It is admitted that under the provisions of section 4980, R. S. 1878, the judgment should have been entered in the form prescribed by sections 3162 and 3169 of said statutes, so far as relates to the matters above mentioned; but it is insisted by the learned counsel for the respondent, that the irregularities complained of can work no injury to the appellants, and that this court should not reverse the judgment for that reason.
The power to render a personal judgment against the person liable for the debt secured by the mortgage, in an action to foreclose such mortgage, given by section 1, chapter 143, Laws of 1877, was taken away by section 3162, R. S. 1878, which provides that the judgment shall fix the amount of the mortgage debt due or to become due, and when demanded in the complaint the judgment shall contain an order directing that judgment be rendered for any deficiency against the parties personally liable therefor.
It is urged that the personal judgment rendered in the judgment appealed from can work no injury to the appellants, for the reason that, taking the whole judgment together, it is apparent that no execution could be issued against the defendants for the collection of the same until after a sale of the mortgaged premises and the application of the proceeds of such sale to the payment of such judgment, and that then execution can only issue for the balance remaining unpaid after such application. This would undoubtedly be the construction which should be given to the judgment. Yet it is not clear that, if this judgment is to stand, it might not be docketed as a judgment against the defendant against whom it is rendered, so as to make it a lien upon his other real estate not covered by the mortgage.
Section 7, ch. 143, Laws of 1877, which declared that such a judgment should not be a lien upon real estate until after the sale of the mortgaged premises, having been repealed before this judgment was rendered, it might have been docketed under the provisions of section 2899, R. S. 1878, and under section 2902 have become a lien upon all the real estate of the defendant, to the great prejudice of the defendant. But, however this may be, the direction in the judgment that after the sale and filing of the report the clerk shall issue execution for the balance due upon the judgment after applying the proceeds of the sale to the extinguishment thereof, without any further act, and without waiting for a confirmation of the sale, is clearly erroneous.
Section 3162, R. S. 1878, above quoted, directs that the judgment of foreclosure shall, when demanded in the complaint, contain "an order directing that judgment be rendered for any deficiency against the parties personally liable therefor." This is the only provision of any kind in the present statute which authorizes a judgment for the deficiency; and this court has held that, under a law similar to this, this "judgment," or, as the court say, order after judgment, must be entered after the sale and confirmation thereof.
This case falls within the...
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