Pereles v. Leiser

123 Wis. 233 | Wis. | 1904

Oassoday, O. J.

Counsel for the plaintiff moves to dismiss the appeal from that part of the judgment of foreclosure and sale entered November 3, 1900, and quoted above, for the reason that it was not taken within “two years from the date1 of the entry of such judgment or order,” as prescribed by the statute (sec. 3039, Stats. 1898). As appears from the foregoing statement, such appeal was not taken until more than three years after “the entry of such judgment or order,” and' hence we perceive no reason why that appeal should not be dismissed.

The question recurs whether the matters determined in the judgment of November 3, 1900, are conclusive upon tbe parties, or are reviewable on tbe appeal from tbe judgment of deficiency entered February 5, 1902. Tbe original judgment determined tbe amount due to tbe plaintiff therein, and, in tbe portion quoted in tbe foregoing statement, ordered and adjudged “that judgment be entered and docketed in favor ■of tbe plaintiff, and against tbe estate of Sarab Leiser, wliicb is liable” therefor. Upon tbe appeal in tbe other case between tbe same parties, such a judgment was held to be erroneous, but not void. Pereles v. Leiser, 119 Wis. 347, 96 N. W. 799. •Counsel contends, however, that it was not a judgment for deficiency, and-that no such judgment could be taken until 'the confirmation of tbe sheriff’s report of sale, or afterwards. Tbe statutes regulating tbe entry of such judgments provide:

“In actions for tbe foreclosure of mortgages upon real estate, if tbe plaintiff recover, tbe court shall render judgment of foreclosure and sale, as hereinafter provided.” Sec. 3154, 'Stats. 1898.

And then, after stating bow tbe proceeds of tbe sale should "be applied (section 3155), tbe statute further provides:

“In all such actions tbe plaintiff may in bis complaint unite with bis claim for a foreclosure and sale a demand for judgment for any deficiency which may remain due to tbe plaintiff after sale of tbe mortgaged premises against every party who may be personally liable for tbe debt secured by tbe mort-gage; . . . and judgment of foreclosure and sale, and also for any such deficiency remaining after applying tbe proceeds of sale to tbe amount adjudged to be due for principal, interest and cost, may in such case be rendered. Such judgment for deficiency shall be ordered in tbe original judgment, and separately rendered ■ against tbe party liable on or after tbe coming in and confirmation of tbe report of sale, and be •docketed and enforced as in other cases.” Sec. 3156, Stats. 1898.

Another section of tbe statute provides, so far as it applies to this case:

“The judgment shall fix the amount of the mortgage debt then due . . . and shall adjudge that the mortgaged, premises be sold for the payment of the amount adjudged to. be due, . . . and, when demanded in'the complaint, an: order directing that judgment be rendered for any deficiency against the parties personally liable therefor.” Sec. 3162,. Stats. 1898.

In Gaynor v. Blewett, 86 Wis. 399, 100, 57 N. W. 44, Mr. Justice C>R,toN, construing these sections, and speaking for the court, said:

“The statute requires that judgment for the deficiency shall be ordered in the original judgment. The order is a necessary part of the judgment of foreclosure, and it is a-final adjudication of the defendant’s common-law liability, for the debt. The formal judgment is rendered and docketed' as of course on the coming in and confirmation of the report of sale showing the amount of the deficiency.”

It was there held that the part of the judgment for such, deficiency was appealable. That was followed in Kane v. Williams, 99 Wis. 65, 72, 74 N. W. 570, where it was claimed that such part of the judgment for deficiency was-“a mere order,” and not appealable; but the court held that the point was not well taken, and that it was “an integral part of the judgment,” and fixed the rights of the parties, and' hence was appealable. That was followed in Richards v. Land & River Imp. Co. 99 Wis. 625, 629, 75 N. W. 401. See, also, Duecker v. Goeres, 104 Wis. 29, 38, 80 N. W. 91.

We must hold that the original judgment to the effect that the estate of Sarah Leiser was liable for such deficiency, not' having been appealed from within the time limited by the' statute, is conclusive upon the executor. It necessarily follows that there is no merit in the appeal from the formal judgment for deficiency, entered February 5, 1902.

By the Court. — The appeal from the part of the original judgment entered November 3, 1900,.of the superior court of Milwaukee county, is dismissed. The formal judgment; for deficiency entered February 5, 1902, is affirmed.