Morris v. Peck

| Wis. | Feb 19, 1889

Lyon, J.

This appeal is by the defendant Nancy Peel from a judgment for the foreclosure of a certain mortgage on real estate, executed by her and the defendant O. P. Peck to one Eva A. Rolfe, and by her alleged to have been assigned to the plaintiff. The appellant asks a reversal of the judgment on either of the three following grounds:

1. The appellant Nancy Peek, interposed a general demurrer to the complaint, which was overruled by the court. The first error is assigned upon this ruling, and it is claimed that the demurrer should have been sustained. The complaint sets out an instrument for the payment of monejr, which, it is alleged, the mortgage in suit was given to secure. Such instrument is denominated in the complaint a contract in writing for the payment of money. It is doubtless a non-negotiable promissory note. The point of the demurrer is, the complaint does not show that the note was ever transferred to the plaintiff so as to enable him to maintain this action. The proposition is unfounded in fact. The complaint alleges that the plaintiff paid Eva A. Rolfe, the mortgagee, the whole amount due on such instrument and mortgage at her request (stating date, place, and amount), and that “for and in consideration of which the said Eva A. Rolfe then and there sold, assigned, and delivered to said plaintiff Pthoard Morris all her right, title, and interest in and to said contract and mortgage and the amount due thereon.” This is an effectual averment of the transfer of the securities to the plaintiff, showing his ownership thereof and his right to maintain this action to foreclose the mortgage. Hence the demurrer was properly overruled — no other objection having been made to the complaint, which is in the usual form of complaints, in such actions.

2. The action was brought in the circuit court of Rich-land county. The judgment purports to have been made aba special term of that court held at the court house in the county of Crawford, on the first day of the Maj^ term, 1888, which was a general term of the circuit court of the latter county. Such term was also a special term of the circuit court of Richland county, and the judgment was properly rendered at such special term. The judgment is signed bj^ the judge, and was afterwards filed and recorded in the circuit court for Richland county. It bears no signature thereon, or other authentication thereof, by the clerk of the circuit court of Crawford county. The want of such authentication is assigned as error.

It may be the regular practice required that the judgment should have been authenticated bjr such clerk by filing the same, or in some other authorized manner, before it was transmitted to Richland county. Such seems to be the requirement of the statute. R. S. sec. 2428. But we do not think the judgment should be reversed for such irregularity, if it be one. The appellant should have moved the circuit court of Richland county to strike the judgment from the files and records of the court, or for any other appropriate relief because of such a want of authentication. la such case it would have been proper for that court to have returned the judgment to Crawford county'for authentication — thus curing the irregularity and saving the expense and delay of an appeal to this court. The judgment bears the signature of the circuit judge, and was made at an authorized special term of the court in which the action was pending. In such case, we do not think the want of proper authentication is a jurisdictional defect, but that, at most, it is a mere irregularity, which this court will not correct on appeal unless an opportunity is first given the circuit court to supply the alleged defect in the record.

8. Several payments having been made upon the mortgage debt, running through a period of over five years, the court sent the securities to a referee for computation of the amount due upon them, and the referee afterwards reported as so due the amount inserted in the judgment. It is now claimed that this amount is about eight dollars too large. This is probably true. Because of such excess the appellant claims a reversal of the judgment, and relies upon the case of Zwickey v. Haney, 63 Wis. 464" court="Wis." date_filed="1885-06-01" href="https://app.midpage.ai/document/zwickey-v-haney-6604788?utm_source=webapp" opinion_id="6604788">63 Wis. 464, as authority therefor. In that case judgment was taken by default for interest on the mortgage debt for one year, over and above what was demanded in the complaint. For that reason a judgment of foreclosure was reversed. That case is clearly distinguishable from this. The judgment there included a demand not claimed in the complaint, and entirely outside the cause of action therein stated. Here the plaintiff has only recovered the specific debt, less payments, which he claimed to recover, the error consisting solely in a mistaken computation of the amount unpaid on the securities. Such computation was inside the limits designated in the complaint. Moreover, the judgment in that case was by default, while here the appellant appeared in the action and had due notice of the application for judgment. These differences take the case out of the rule of Zwickey v. Haney, and require the application of a different rule of practice. Ve hold, therefore, that the appellant should have called the attention of the circuit court, either by motion or otherwise, to such error in the computation, or at least should have demanded of the plaintiff that he remit the erroneous excess from the judgment, before the error can be available to him in this court on an appeal from the judgment. The record fails to show that he has done so.

For the foregoing reasons the judgment of the circuit court must be affirmed.

By the Oourt.— Judgment affirmed.