Cord v. Hirsch

17 Wis. 403 | Wis. | 1863

By the Court,

DixoN, C. J.

For the purpose of appeal, the order confirming the sale and that for judgment for deficiency may be considered one. In general practice they are obtained upon a single motion and entered as one order.

View them as we may, the objections now chiefly urged against the confirmation and judgment amount only to tbis : that there is a defect of parties defendant in the action. They are founded upon the one essential fact, that Mrs. Moore, the owner of the equity of redemption, was not joined as defendant. If she had been, and judgment in form taken against her, it is not nor could it well be insisted, that such judgment was not to all intents valid and effectual. But Mrs. Moore was not joined, and the question is, whether the other defendants, or any of them, can now have the benefit of any objection arising from such omission."

We think not. The legislature has fixed the time and manner in which such objections must be taken: by demurrer, if they appear on the face of the complaint; otherwise by answer. R. S., ch. 125, secs. 5, 8. If not so taken, the defendant shall be deemed to have waived the same. Idem, sec. 9. Such waiver is for all the purposes of the action, except, perhaps, those objections which may be raised at the trial by way of variance or failure in;proof to establish tbe cause of action set out. It is an abandonment, of every objection or advantage of objection arising solely upon that ground — equivalent to a release of errors in that respect, or a formal admission of record by the defendants that the parties before the court are the proper parties and all the parties necessary to a complete and formal adjudication of the causes of action stated in the complaint. With the exception, therefore, of the cases in which objections may be and áre taken at the trial, and which stand upon a distinct ground, the defendants, failing to demur or answer for that'cause, cannot afterwards make the objection, or insist upon a want of proper parties in the same or any other form. It is as if the legislature had declared that thenceforth it shall be deemed that there is no defect of parties. Moir v. Dodson, 14 Wis., 279. The defendants accept the issues tendered, with all the consequences which might legitimately follow in case every necessary party was before the court. Hence the defendant Hirsch cannot resist a confirmation, or judgment for deficiency, on the ground that the equity of redemption was not extinguished, or that the sale passed nothing but the plaintiff’s assignable interest in the mortgage.

The sale was properly made by the officer to whom the de-cretal order was originally delivered. R S., chap. 13, sec. 106. The other objections, that' the costs were unnecessarily increased by repeated postponements of the sale, and that the last notice of postponement was not signed by the sheriff officially, we think were properly disregarded by the court below. It was not the fault of the plaintiff that the sale did not take' place at once. He was restrained by injunction, and proceeded with the sale the moment the disability was removed. The omission of the sheriff was a clerical mistake, affecting no substantial right. R. S., chap. 125, sec. 40.

Orders affirmed.