298 N.W. 168 | Wis. | 1941
Action at law begun April 9, 1940, by Anna Donovan, as guardian of the estate of Richard Donovan, against the Theo. Otjen Company to recover amounts due on two bonds. Judgment for plaintiff. Defendant appeals.
The two bonds in question were secured by a mortgage trust indenture on a leasehold interest in real estate and were part of a series of ninety bonds issued by appellant. Under the trust indenture Ottomar Kloetzner was made trustee and the equity and leasehold rights of appellant were assigned to him. The issuance and ownership of the bonds are admitted as is the further fact that the bonds are past due. Defendant answered that under sec.
The dispute is as to which of two sections of the statute is controlling. The trial court decided that the provisions of sec. 269.58, Stats., control. It struck out appellant's answer and granted respondent's motion for summary judgment.
Sec.
"(2) No judgment in any action at law or equity shall be entered in any proceeding on an evidence of indebtedness secured by a mortgage on real estate where no action for the foreclosure of the mortgage has been commenced, except as hereinafter provided."
It goes on to provide that the plaintiff shall first apply to the court for entry of judgment; that a notice shall be served upon the record owner of the equity of redemption of the property securing the indebtedness; and that a hearing be *49 held on the application for judgment. Pending the hearing all proceedings shall be stayed. Upon the hearing "the court shall fully inquire in regard to and upon all the facts and circumstances of the case, and may direct that no judgment be entered upon the indebtedness secured by said mortgage without foreclosure of the mortgage until the expiration of a reasonable period after hearing not exceeding one year at a time." This is the section which controls this case. If appellant desires an extension of time under that statute, it is required to set forth in a verified petition its "economic condition, circumstances and earnings for the previous year." An extension of time might be granted upon the condition that the debtor pay, during the period of the desired extension, the taxes and insurance, or the taxes, insurance, and interest, in the discretion of the court.
Sec.
Because sec. 269.58, Stats. 1935, became effective later than sec.
Applied to this case, the above rule requires the conclusion that since the earlier statute does not allow an action on the obligation to be brought until the foreclosure judgment, sale and confirmation, it is pro tanto repugnant to sec. 269.58, Stats., which does allow such an action, and to that extent impliedly repealed. The latter section does allow an action to be brought but declares that no judgment can be entered where no foreclosure of the mortgage has been commenced, except after a notice, hearing, and a court order with reference to an extension of time as provided for in that section.
Although it does not affect the result in this case, it is interesting to note that the legislature has recently expressly repealed sec.
Since appellant has completely failed to meet the requirements of sec. 269.58, Stats., we conclude that its defense failed and that the lower court entered the proper judgment.
By the Court. — Judgment affirmed.