73 Wis. 482 | Wis. | 1889
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
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
For the foregoing reasons the judgment of the circuit court must be affirmed.
By the Oourt.— Judgment affirmed.