Farmers' & Millers' Bank of Milwaukee v. Luther

14 Wis. 96 | Wis. | 1861

By the Court,

Dixoít, C. J.

We know of no principle by which the judgment or order of a court of law or equity can be collaterally impeached or set aside for mere error or irregularity, the jurisdiction of the court being established or conceded. The jurisdiction of the court in the case of Luther vs. Williams & Bratley, and its power to make the supplemental order directing the sale of the mortgaged premises, are conceded. The failure of the clerk of the circuit court of Dane county to certify the order to the clerk of the circuit court of Jefferson county, or of the latter to file and enter it, until after the sale took place, and the sale by the referee before these acts were performed, were, at most, mere irregularities. They involved no question of power or jurisdiction, and the sale therefore cannot be set aside in this collateral proceeding. The appellant’s remedy was by petition in that suit, upon which it could have been let in to defend, and thus have obtained the desired redress. The judgment of the circuit court must therefore be affirmed. But as we are of opinion that the sale by the referee, before the filing and entry of the order by the clerk of the circuit court of Jefferson county, was clearly irregular, and should for that reason be set aside, at the instance of any party interested, we shall affirm the judgment without prejudice to the appellant’s right to petition in that suit to be let in as a defendant, and to move to set it aside for irregularity. We can find nothing in the Code which countenances the idea that judgments and orders of that importance could be acted uPon and execiated without filing and entry in the office the proper clerk. Suck a practice would be contrary to Past experience and usage. Tbe parties and others have a right to look to the records and files as an authentic and' reliable source of information upon all such matters; and the consequences would often be most mischievous if they were not permitted to do so. Section 191 of the Code made it the duty of the clerk to file and attach, so as to constitute a part of the judgment roll, “all orders and papers in any way involving the merits, and necessarily affecting the judgment.” Section 306 provided that the clerk of the circuit court of the county in which the special term was held, should certify the orders and papers in causes pending in other counties of the circuit to the clerks of the circuit court of the counties where the same were pending, and that they should be filed and entered by such clerks in the same manner as if the causes had been heard or decided by the circuit court at a term thereof held in that county. It is immaterial to which of the clerks the negligence was attributable. It was, in any event, the duty of the plaintiff or his attorneys, to see that the order was filed in the proper office before any steps were taken to execute it.

We think that the rights and standing of the appellant ought not, in this respect, to be affected by reason of its having purchased after the original judgment of foreclosure was entered. Judgments thus obtained upon the non-payment of a portion of the interest, or of an instalment of the principal, which is afterwards paid, are as a remedy quite severe enough when we give to them the exact effect which the statute requires. Upon a subsequent default, however trifling, the mortgagee is authorized to proceed most summarily upon a judgment rendered before that part of the debt became due, and that without notice to purchasers and others who may have become interested in the mortgaged premises prior to the happening of such default. The payments may be fixed at long intervals running through a series of years. In the mean time the privilege of selling or incumbering the premises may be very valuable; creditors may become interested. It would'be unjust to say, in such cases, that subsequent purchasers and incumbrancers in good faith have no right to insist upon a compliance with the quirements of the law on the part of the mortgagee ; or that !the law affords them no remedy for any detrimental mistakes or abuses which may intervene in the execution of the summary process which is.thus placed in his hands. They are clearly entitled to both; and as we have already said, the remedy in a case like the present is by petition in the original action.

The judgment of the circuit court is therefore affirmed, but without prejudice to the appellant’s right to file such petition.