23 Wis. 692 | Wis. | 1869
This is an action to foreclose a mortgage given by the defendants Nnttall and wife, on the 28th of February, 1854, to the La Crosse and Milwaukee Pailway company, to secure the payment of $2,500; which mortgage has' been assigned to the plaintiff. The Milwaulcee a/nd St. Paid Pail-wa/y Company was made a defendant, and came in with its answer, alleging that the La Crosse and Milwaukee company (to whose rights it has succeeded, as therein stated), in 1857, under its charter, located its road over a portion of the land embraced in the mortgage; that, after taking the strip of land required for the use of its road, the company agreed with the owner as to the amount of compensation to be paid therefor, and took a conveyance of the right of way. It demanded that, in any judgment of foreclosure that might be rendered in the action, the officer be directed to sell first that portion of the mortgaged premises- not conveyed by Nuttall to the La Crosse company and noyr used for the purposes of its road. On the 12th of May, 1866, the action came on to be tried, and, the Milwaulcee and St. Paul Company not appearing to make proof of the facts stated in the answer, the usual judgment of foreclosure and sale was entered. In pursuance of the judgment, the mortgaged premises were advertised for sale on the 18th of August, 1866. On the 14th of August, the company served a copy of a petition and notice of motion to be heard before the circuit judge on the 16th of August, praying, among other things, for a stay of the sale until the next term of court, which motion was denied. The sheriff proceeded with the sale. At the October term, the plaintiff moved to confirm the sheriff’s report of sale; and the company made a cross-motion to set the sale aside so far as it purported to sell the road-bed, right of way, and grounds of the Milwaulcee and St. Paul Company over and across a portion of the mortgaged premises;
The declared object of the last branch of the order is, to ascertain by a reference the amount of compensation the Mil-waulcao and St. Paul Gonvpany must pay for the land embraced in the mortgage, and now used and occupied by it for the purposes of its road. It is stated in the answer and petition, that the La Crosse and Milwaukee company, in 1857, under its charter, located its road over the land — 'agreeing with the owner as to the amount of compensation, paying that compensation, and taking a conveyance of the right of way.
But as it failed to make compensation to the holder of the mortgage, the St. Paul company proceeded anew to acquire and perfect its title. But how must it proceed ?.
In the case of Kennedy against this same company (22 Wis. 581), we have given our views upon this question of practice,
The other part of the order sets aside the sale so far as it purports to sell the road-bed, right of way and grounds of the company. The sale, however, appears to be regular and in strict conformity to the judgment. It will be seen that the judgment has not been vacated, which directs a sale of so much of the mortgaged premises as may be sufficient to raise the amount due the plaintiff. The application is to withdraw a portion of the mortgaged premises from the operation of the judgment. In other words, it is an attempt to review and correct the judgment upon motion made after the term, or to make such a motion perform the office of an appeal. This cannot be done. Edwards v. The City of Janesville, 14 Wis. 26; Spafford v. Same, 15 id. 474; The Ætna Ins. Co. v. McCormick, 20 id. 265. The practice adopted here is still more objectionable than the one resorted to in the above cases. There the judgments were set aside, or attempted to be set aside, on motions after the term, while here the judgment is left in full force, and a sale under it perpetually stayed. It seems to us that the integrity of the judgment cannot be destroyed in this manner. It is true, the company asked in the motion, not only that the sale of the road-bed, right of way and grounds be set aside, but also that the judgment, so far as it directs a sale of said right of .way, etc., be vacated. But the court only granted the former part of the motion; leaving the judgment to stand undisturbed. The company does not complain of the order, nor object that it does not grant it all the relief it was entitled to. Had the company taken an appeal, we might have had to consider whether, upon the papers in support of the motion, any sufficient reason was shown for setting aside the judgment. But as the case now stands, that
The order appealed from must therefore be reversed, and the cause remanded for further proceedings.
By the Gourt.— Ordered accordingly.
A motion for a rehearing was denied at the February term, 1868.