Diedrichs v. Stronach

9 Wis. 548 | Wis. | 1859

By the Court,

Pause, J.

On this appeal no printed case is furnished, as required by the rules of this court; and on looking into the papers, we are satisfied the appeal was taken for delay. The only points suggested in the written brief of the appellant are, that as to the appellant Sarah Stronach, the suit was not commenced until after the so called mortgage stay law took effect; and that this law therefore applied to it; and whether, upon the decease of James Stronach, it was necessary for the complainant to have made the heirs parties by a supplemental bill. As to the first point, the suit was commenced as to all the defendants, except Sarah Stronach, before the act in question took effect She was proceeded against as a non-resident. An order of publication, and that notice be served by mail, were obtained; and the notice deposited in the post office directed to her; and on the day after the act took effect she appeared by attorney in the suit. It is evident she received the notice before the stay law took effect. And even though this would not have been sufficient without publication, if she had not appeared, yet where she receives the notice before the time for publication has elapsed, and appears in the suit, we think there is some ground to hold that the reception of such notice must- then be considered as the serving of the process for the purpose of determining when the suit was commenced. The last part of subdivision 5, § 40, of the code, treats a notice received through the post office as binding. But even if the suit were not to be deemed commenced as to her until- she appeared, for want of the entire publication required by law; yet, for the purpose of determining whether it was or not a suit pending at the time the stay law took effect, we think the prior service on the other defendants sufficient. After they were served, it was certainly a suit pending, and comes within the decision of this court that this law was not applicable to suits pending at the time of its passage.

As to the other question whether, where a defendant dies after a decree of foreclosure, but before a sale, it is necessary to make the heirs parties for any purpose, we do not think it is presented by this appeal. The application to stay proceedings and to set aside the decree on account of the death of James Stronach, was made by an agent acting for the estate. It was refused, and there was no appeal from the order refusing it The appeal is by Sarah Stronach alone, who does not represent the heirs; and it is from the decree alone, which does not authorize the review of a subsequent order; upon which its merits can in no wise depend.

The decree is affirmed with costs and five per cent, damages.

Cole, J., Dissenting. See Weisner vs. Wells, supra, 472.