Pier v. Storm

37 Wis. 247 | Wis. | 1875

Lyon, J.

It appears by the affidavits read on the hearing of the motion to vacate, that the attorneys of the defendant Storm had full knowledge that judgment was about to be entered in the action, and of the contents thereof, and that, for more than a year before the motion was made, the defendant knew that judgment had been entered therein. If the court had jurisdiction to render the judgment, it was then too late to attack it by motion. In Loomis v. Rice, decided herewith, some of the cases are cited in which this rule is applied. But the rule is so well settled in. this state, that it is hardly necessary to cite authorities to support it. The only ground upon which it is claimed that the court had no jurisdiction to render the judgment, is the want of a notice of trial for the term at which it was rendered. At most this is a mere irregularity of practice, and not a jurisdictional defect in the proceedings. But in this case, where the form of the judgment was agreed upon by the attorneys of the respective parties, and where the judgment gave the defendant Storm all that he claimed in his answer, we should hesitate to hold that such want of notice was even an irregularity. It must be held that the circuit court exceeded its authority when it vacated the judgment.

The next question is, whether the court erred in setting aside the sale and the confirmation thereof.

No notice of the application for confirmation of the sale was served upon Storm's attorneys. It is argued that this omission renders the order of confirmation null and void. In view of the facts, that the judgment gave the defendant Storm all that he asked, that the forty acres which he claimed to own was not sold, and that there is no pretense that the plaintiff obtained judgment for a larger sum than was due on his mortgage, we cannot think that the want of such notice affected the jurisdiction of the court to confirm the sale.

It is claimed, also, that the sale is void by reason of an irregular postponement thereof. The mortgaged premises were advertised to be sold by the sheriff on January 25, 1878 ; but, there being no bidders present at the time and place so appointed, except the plaintiff, the sale was adjourned bj the sheriff, at the request of the plaintiff’s • attorney, to February 1st, and again, for the same reason,- to February 10th, when the sale was made. Due notice of the sale, and of each adjournment, was published; but "the notice of the. second adjournment bears date February 6th, being the day it was published. It is argued that because it was not dated February 1st, the inference necessarily is that nothing was done on that, day, and hence that the notice of sale abated, and became unavailable to support the sale made- on the 10th. We cannot take this view of the matter. That judicial sales may lawfully be postponed from time to time, there can be no doubt. The practice of postponing or adjourning such sales beyond the time first appointed therefor has always prevailed in this state, and to our knowledge the regularity, of the practice has never been questioned. In the present case, notices of the adjournments were published with .the original notice of sale, on the foot thereof, and would have been valid had they not been dated at all. The fact that one of them is dated February 6th, raises no presumption that the sheriff did not attend on the 1st, at the hour and the place appointed for the sale, and then and there adjourn the sale to the 10th. On the contrary, we think the legal presumption is that he did so. Our conclusion is, that the record shows a valid sale and confirmation.

But it does not appear that Storm or his attorneys actually had knowledge- of such sale and confirmation, until a short timé before the motion to vacate the same was made ; and hence the court might lawfully grant such motion, under sec. 38, ch. 125, R. S., if a proper case is made therefor. This brings us to inquire whether the defendant Storm proved • such a case of mistake, inadvertence, surprise or excusable neglect on his part, as would authorize the court to relieve him against the sale and confirmation.

The. affidavits read on the hearing of the motion are in direct conflict on some material points. No extensive statement of or comments upon them would be useful. They have been carefully examined, and we content ourselves with a brief statement of tbe material facts which we think they establish.

When the action was commenced, Storm was the owner of the northwest quarter of the mortgaged quarter section, although in his answer he only claimed to be the owner of the northeast quarter thereof. It was not known by plaintiff or his attorney, until long after confirmation of the sale, that Storm desired to protect any interest in the mortgaged premises other than that claimed in his answer. Storm had several interviews with plaintiff’s attorney, intermediate the judgment and sale, relative to the foreclosure and Storm’s interest therein, and was fully and honestly advised by such attorney of the exact situation of the whole matter. He was told that only enough of the mort•gaged premises would be sold to pay the foreclosure judgment in full, and that if the balance of such premises sold for sufficient to pay the judgment, the northeast quarter thereof would not be sold, and the same would, if sold at all, be sold last. He was not deceived or misled by the plaintiff’s attorney in any respect, but received from him honest advice and correct information. The proof of this is abundant. He fails in an attempt to show that such attorney assured him that only the south half of the quarter section would be sold, or that the latter said or did anything to prevent bidders attending the sale. He is chargeable with notice that the whole quarter section was liable to be sold, if necessary to satisfy the judgment. Knowing precisely the interest which he had or might have in the sale, he neglected to attend it, or to ascertain afterwards how he was affected by it, until the sheriff’s deed had been executed to the purchaser at the sale, and until such purchaser was seeking to get possession of the land.

This was inexcusable laches on the part of Storm, and would of itself defeat his motion, even though he had proved a meritorious case for relief but for his laches. Raymond v. Pauli, 21 Wis., 531. But we do not think that he has proved such a case. He has failed to show that any fraud or deception was practiced upon him; tbe testimony of tbe value of the premises is so unsatisfactory that we are quite unable to say that tbe same were sold for a price so far below tbe true value that there ought to be a resale; and there is no guaranty that the same would sell for a dollar more were a resale ordered.

The only mistake which the record discloses was the failure of Storm, to make a full defense in his answer; and he did not ask to be relieved against that until more than a year had elapsed after he knew of the judgment. It was then too late. Perhaps, if he had required the sheriff to sell the south half of the quarter section first, disclosing to him his' ownership of the northwest quarter thereof, it would have been the duty of that officer to have made the sale in that manner. But, failing to do so, and failing also to make such requirement of the plaintiff, but sleeping upon his rights until the time of redemption has expired and the premises have been conveyed to the purchaser, it must be held that his remedy by motion to vacate and set aside the sale and subsequent proceedings, is lost.

By the Court. — The order appealed from is reversed.