Pereles v. Leiser, 119 Wis. 347

Pereles v. Leiser

119 Wis. 347 | Wis. | 1903

SiebecKER, J.

Appellant appeared by counsel in this action November 23, 1901, immediately after the sale of the premises under the foreclosure judgment. He moved upon the record, proceedings, and by petition that the order in the judgment for a judgment of deficiency be disregarded, on the ground that no personal liability existed on the note at the time of the commencement of this action, and that the order in the foreclosure judgment for a judgment for any deficiency should therefore be disregarded and treated as of no effect. On January 6, 1902, after hearing plaintiff for the entry of a judgment for deficiency on the sheriff’s report, and the appellant opposing such order and judgment because contrary to law, the court approved the sheriff’s report, and ordered that judgment for a deficiency be entered, as awarded in the judgment, for the deficiency shown by the report of the sheriff.

It is contended that appellant cannot now avail himself of the error of the lower court in awarding judgment of deficiency. Bespondents concede no claim was filed on the note against the estate of Sarah Leiser, deceased, and when this *351action was commenced the time for filing claims against her estate had expired, and that the plaintiff, their testator, took his judgment of deficiency against appellant as executor of her estate trader the judgment decreeing a foreclosure and awarding the entry of such a judgment. We can perceive no reason why appellant áfter such appearance and hearing in the matter cannot avail himself of the right to appeal from that part of the judgment of foreclosure awarded against him as executor, and the order directing the entry thereof, since such appeal has been taken within the time limited by statute after the entry of judgment.

The vital question on this appeal is, Was plaintiff entitled to recover on the note against the appellant as executor of this estate on August 24, 1900, when this action was commenced which resulted in this judgment of foreclosure and for deficiency in plaintiff’s favor. Sec. 3844, Stats. 1898, provides :

“Every person having a claim against a deceased person, proper to be allowed by the court who shall not after notice given as required by section 3840 exhibit his claim to the court within the time limited for that purpose, shall be forever barred from recovering such demand or from setting off the same in any action whatever.”

It was held, under this statute, that all claims against a decedent which can properly be presented against his estate must be filed for allowance with the .county court upon due notice, and all claims not presented as required by sec. 3844 are absolutely barred, and thereby-the remedy is cut off and the right of action is extinguished. Carpenter v. Murphey, 57 Wis. 541, 15 N. W. 798; Winter v. Winter, 101 Wis. 494, 77 N. W. 883. In Eingartner v. Illinois S. Co. 103 Wis. 373, 79 N. W. 433, this court approved the doctrine as stated in Woodman v. Fulton, 47 Miss. 682, “that the bar created .by the statute of limitation is as effectual as payment or any other defense, and when once vested cannot be taken away *352by legislative action without the defendant’s consent.” In this ease the limitation for exhibiting a claim on this note-against the estate of Sarah Leiser, deceased, had run against it before this action was commenced. Hence, there can be no judgment over for any deficiency against the appellant as the-executor of her estate. The question is well settled under repeated decisions in this state, which declare, in positive terms,, that after such an extinguishment of a claim no- foundation for a personal judgment remains on the note, though the right to a judgment of foreclosure of the mortgage to enforce the lien still existed, and therefore “the power to render a personal judgment in the foreclosure action cannot be exercised,, because there is no longer any one personally liable to satisfy the conditions of the statute.” Duecker v. Goeres, 104 Wis. 29, 80 N. W. 91.

The judgment of deficiency was without authority and therefore erroneous.

By the Court. — The order directing the entry of a personal judgment against Isidor Leiser, as executor of the last will and testament of Sarah Leiser, deceased, and making it a charge upon her estate, and the part of the judgment appealed, from, are reversed.