5 Wis. 169 | Wis. | 1856
By the Court,
The bill in this case, was filed to foreclose a mortgage given by Ira L. Ames arid wife, to Natha*
It is objected that tbe relief granted was inconsistent with that prayed for in tbe bill. As has been stated, the bill prayed for a sale of mortgaged premises, and for tbe payment of tbe amount due tbe complainant, principal and interest, and for general relief. Upon tbe bearing, it appeared that no principal was due; that tbe relief prayed for, extended to and embraced more, than tbe complainant showed himself entitled to. Could not the court give tbe complainant less than be asked for ? Suppose at tbe bearing it bad been found, that the principal of tbe note was due, but that tbe interest bad been paid, can it be contended that a decree could not be made under this bill for tbe amount due ? It would undoubtedly have been competent for tbe court to grant this relief, under tbe prayer for general relief, as it was agreeable to tbe case presented by tbe bill, and was not inconsistent with the specific relief prayed.
Still another objection has been taken to this decree. It is insisted that it is not in conformity to chap. 84, R. S. Tbe proper practice in tbe present case under this statute, was for tbe Circuit Court to have adjudged and decreed tbe amount actually due tbe complainant upon tbe note and mortgage set forth in tbe bill; and also'to have adjudged tbe amount secured by and unpaid upon said note and mortgage at tbe date of the decree; and to have entered a decree of foreclosure and sale for so much of tbe mortgaged premises as would be sufficient to raise tbe amount actually due, interest and costs, which could
The other points raised in this case have already been sufficiently copsidered in the previous case.