Jurgens v. Cotton

13 Wis. 374 | Wis. | 1861

By the Court,

Cole, <7.

This case presents precisely the same question of practice as was involved in the case Howe vs. English, 6 Wis., 262. A part only of tbe gage debt was due, and tbe mortgaged property was so circumstanced tbat it could not be sold in parcels. Tbe judgment did not provide tbat if, previous to a sale under it, tbe mortgagor should pay tbe amount actually due upon tbe mortgage, witb interest and costs, tben tbe proceedings should be stayed, but was for an absolute sale of tbe property, and tbat tbe respondent be paid tbe whole sum due and to become due. In Howe vs. English, this form of a judgment or decree was held to be erroneous. It is suggested tbat this case was not well considered, and tbat such a clause in a judgment is entirely unnecessary and merely embodies a provision of tbe statute. However this may be, tbe case of Howe vs. English has been followed in several subsequent cases, and we are not disposed to overrule it now. Wood vs. Trash, 7 Wis., 566; Sauer vs. Steinbauer, 10 Wis., 370.

Tbe judgment of tbe circuit court is reversed, and tbe cause remanded to tbe circuit court to enter a judgment in conformity to this opinion.