Loomis v. Wheeler

18 Wis. 524 | Wis. | 1864

By the Court,

DixoN, C. J.

I think tbe complaint is defective in not showing tbe parties to tbe foreclosure judgment, and tbe term at which it was entered. It is a general rule, in actions upon judgments, that tbe term, parties, and sum recovered, must be stated with certainty. 1 Chitty’s Pl., 371. It is true that here tbe action is not upon tbe judgment of foreclosure, but tbe plaintiff’s whole interest and right to maintain tbe action comes through it, and I think be should set it out, so far at least as to show tbe parties and tbe time of its rendition. This is necessary to enable the defendant to answer. He may wish to consult tbe record to ascertain tbe facts regarding tbe alleged sale, or to plead that there was no such judgment, in case be shall be so advised. Tbe sheriff cannot be supposed to charge bis mind with everything that occurs in tbe course of bis official transactions. He is entitled to tbe same benefits in pleading, tbe same concise statement of facts constituting tbe alleged cause of action, as if be were a stranger to everything which took place under tbe judgment of foreclosure. Tbe plaintiff may not be required to state facts showing j urisdiction, for tbe circuit court, in which tbe judgment is alleged to have been rendered, is a court of general jurisdiction, and jurisdiction of the foreclosure action will therefore be presumed; but be must point out with precision tbe judgment under which be claims to have purchased, and by virtue of which tbe writ of assistance was issued.

Upon tbe other point presented in argument, I am against tbe defendant. I think that by Rule 31, Rules of 1857, tbe purchaser at a foreclosure sale, under a judgment so directing, is entitled to be let into possession, and, if need be, to a writ of assistance, before confirmation of the sale. The rule says he is entitled to such possession in so many words; and 1 can see no object in having rules of practice unless effect is given to them according to their obvious meaning. A rule prescribing one thing and meaning the very opposite, would be but a snare in the path of the unwary. “ Unless otherwise specially ordered by the court, the judgment shall direct * * * that the purchaser at such sale be let into possession of the premises on production of the deed,” is the language of the rule. It seems that this plain language has been evaded in some instances in New York, and a confirmation held necessary before the purchaser can be put into possession; but I cannot do so. I am for adhering to the rule so long as we have it. By the former practice in equity, a confirmation of the sale was necessary before the possession was to be delivered; and such was the decree. . It provided for a delivery of possession to the purchaser, on production of the master’s or sheriff’s deed and a certified copy of the order confirming the report of sale, after such order had become absolute. But the rule of 1857 seems expressly intended to modify the practice in this respect; and I can see no means of evading the effect of a judgment entered in the manner prescribed by the rule. If there be any reason why the judgment in this respect should not at once be executed and possession delivered — if the defendant intends to oppose the confirmation or to move to set the sale aside — let him prepare his affidavits, make his motion, serve his papers, and obtain a stay of proceedings from the court or a judge thereof, and no mischief can result from the practice. If, on the other hand, there is to be no opposition, and the sale is to stand, it is very proper that possession should be immediately delivered.

Order affirmed.