161 Wis. 180 | Wis. | 1915
Dissenting Opinion
(dissenting). The real estate and chattel mortgages were given to secure the same indebtedness. Sec. 2316c, Stats., provides:
“In case of the failure of the owner of any such mortgage, or his agent conducting such sale, to comply with the provisions of this section within the time herein limited, the debt*182 secured by sucb mortgage shall be deemed fully satisfied and the mortgage canceled.”
This is a pretty plain statute. Like many other statutes on our books, the penalty provided for violation is grossly excessive. By the terms of the statute the chattel mortgage is not only canceled, but the debt which it secured is “deemed fully satisfiedIf the statute means what it says, the defendants owed the plaintiff nothing when the action was begun, and he was entitled to no relief.
I think the way to deal with statutes of this kind is to enforce them as they are written. I believe the legislature in this instance meant just what it said. There is a tendency to insure obedience to many statutes by imposing excessive penalties. The fact is lost sight of that not every one is familiar 'with our statute law, although presumed to know it, and that there are innocent violations of the statutes, in the sense that the violators do not know they are doing wrong when they do the forbidden act or fail to do the act required.
If this were a case where the plaintiff held a note and mortgage on a cow for $40, and the property had been seized and sold and brought only $30 at the sale, the court, I think, would have no hesitancy in finding not only that the mortgage was canceled, but that the debt secured by the mortgage was satisfied. This is evidently the kind of a situation the legislature had in mind when the law was passed. It was not thinking in large sums or about exceptional cases. It deemed it just to require that the affidavit provided for be filed, and, in order to secure obedience to its mandate, said that failure to file should operate as a satisfaction of the debt secured by the mortgage. It rather shocks our sense of right and justice to say that the plaintiff should lose $4,000 here because he failed to comply with the statute by filing the affidavit required thereby. Still, I think this does not change the law, and if the debt of $10 is satisfied in the supposed case referred to, it is not easy to see why the entire debt is not satisfied here.
Lead Opinion
In this case, though the idea prevails that the order should be affirmed, there is such conflict of views as to the ground therefor, it is considered the general practice in such situation of pronouncing judgment of affirmance without any opinion being filed should be followed and such is the order.
