Wis. Nat'l Loan & Bldg. Ass'n v. Pride

• Decision Date: 05 June 1908
• Citation: 136 Wis. 102,116 N.W. 637
• Court: Wisconsin Supreme Court
• Parties: WISCONSIN NATIONAL LOAN & BUILDING ASS'N v. PRIDE.

136 Wis. 102

116 N.W. 637

WISCONSIN NATIONAL LOAN & BUILDING ASS'N

v.PRIDE.

Supreme Court of Wisconsin.

June 5, 1908.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by the Wisconsin National Loan & Building Association against Sarah E. Pride and another. From a judgment for plaintiff, defendant Sarah E. Pride appeals. Modified and affirmed.

Action to foreclose mortgage, executed jointly by the appellant and Charles A. Pride, her husband, upon real estate in Milwaukee owned by them jointly. The complaint alleges default in payments of interest and installments upon the stock in the plaintiff corporation, which were conditioned to be paid in the bond and mortgage, the accrual under the by-laws of fines to the amount of $55 at the time the action was commenced, and at the rate of 5 cents per share per month on each installment then and thereafter to be due, and also plaintiff's election to declare the mortgage debt due in its entirety, also that the premises are inadequate security, waste is threatened thereon, and that defendants have permitted the same to be sold for delinquent taxes. Answer, admitting most of the material allegations, was interposed by Charles A. Pride, but the appellant, though personally served with summons, did not answer, but appeared by attorney and was represented on the trial. The court rendered judgment for the amounts alleged to be due for principal and interest, for $119 of fines, and for other items secured, provided for foreclosure and sale of the mortgaged premises, and ordered personal judgment against both defendants for any deficiency that might arise; also ordered, in case the premises cease to be occupied as a homestead, that a receiver might be appointed upon motion. From this judgment Sarah E. Pride appeals.Turner, Hunter & Goff, for appellant.

Pierson L. Halsey, for respondent.

DODGE, J. (after stating the facts as above).

1. The first assignment of error is absence of evidence to support the finding of a liability, secured by the mortgage for $119.25 of fines, or of any sum, for the reason that no proof was made of by-laws authorizing such fines, nor of any corporate action imposing them. The complaint alleges that the fines, imposed in accordance with the by-laws, amounted at the time of the commencement of the action to $55.65, and that further fines would accrue at the rate of 5 cents per share per month on each installment, and a witness testified that, so computed, the amount at the date of the findings was $119.25. As against appellant, these allegations of the complaint were without denial; she having interposed no answer. In the absence of denial the allegations of the complaint stand confessed in nonpresence of infant or nonresident defendants, although a discretion rests in the trial court to require proof thereof before rendering judgment if he shall think necessary to safety. Sibley v. Weinberg, 116 Wis. 1, 92 N. W. 427. This rule would justify the judgment, but for the fact that plaintiff did introduce evidence, which is brought before us by the bill of exceptions. By that evidence, and by the undenied allegations of the complaint, it was established that, at or before the time of commencing this action, the corporation had exercised its right under section 2014, St. 1898, to forfeit the defendant Charles A. Pride's shares of stock, and to terminate his membership therein. It is very obvious that the statute does not contemplate that a person shall continue liable month by month for fines upon installments agreed to be paid on stock in a building and loan association, after he shall have ceased to be such member by the act or consent of the...