Pratt v. Frear

13 Wis. 462 | Wis. | 1861

By the Court,

Cole, J.

This is an appeal from an order tbe circuit court of Rock county, refusing to set aside and vacate a judgment of foreclosure and sale. Tbe action was commenced by tbe respondent Pratt, in December, 1858, to foreclose a mortgage given by Pixley. Erear & Winters, partners in trade in New York, on tbe 6tb day of October, 1857, obtained a judgment in the United States district court for Wisconsin, against tbe defendant Pixley, for tbe sum of $772 49. On tbe same day, Aaron S. Bright obtained a judgment against said Pixley, in tbe same court, for $461 89. These judgments were subsequent to tbe mortgage. Executions were issued upon them, and a portion of tbe mortgaged premises was sold to tbe judgment creditors in December, 1857. No deeds have ever been given on these sales. In tbe foreclosure suit, attempts were made to get service on tbe defendants Bright, Erear and Winters, by tbe publication of tbe usual notice in a newspaper, and by mailing a copy of tbe summons, complaint and notice of tbe object of tbe suit, to them in New York. It is contended, however, that this service was so defective that tbe court never acquired jurisdiction of tbe parties. Tbe action proceeded to judgment, and tbe property was sold in November, 1859. Tbe sheriff made bis report of sale, which was confirmed, and tbe purchasers went into possession of tbe premises. After this, one W. F. Burgess purchased tbe certificate of sale given by tbe marshal on the executions issued on the Erear & Winters and Bright judgments, and filed his petition in the original suit of Pratt vs. Pixley et al., asking that the judgment of foreclosure and sale in that suit be declared null and void as against Erear & Winters and Bright; that the same be vacated and set aside as to them, and likewise as to him; that be be permitted to redeem tbe premises on paying tbe amount due on tbe note and mortgage; and that there be -an account of the rents and profits of the property since tbe mortgagee went into possession, and that this amount be deducted from the mortgage debt. Tbe circuit court denied this application, and, as we think, properly. The ground of this application was, that tbe proceedings in tbe foreclosure suit were null and void as to tbe judgment creditors Frear & Winters and Bright, on account of the defective service of process upon them; and that Burgess, resenting tbeir interests, had a right to redeem in the same manner as though these proceedings had never been had. Without stopping to determine the question whether this position is sound, or to inquire whether the court ever acquired jurisdiction of Frear & Winters and Bright, so as to bar their right to redeem, we have to say that that right has either been barred and foreclosed, or it has not. If it has not been cut off, as the counsel for the appellant assumes, then his remedy is to file his bill to redeem at once, instead of proceeding in the manner he has done. He has filed his petition in the foreclosure suit, thus making a suit within a suit, which we think is bad practice. If the mortgage has not been foreclosed as to the parties whose interests he has obtained, he has a simple, direct and regular way to proceed, which is to file his bill to redeem. It occurs to us that this is the proper practice, in case their rights have never been barred. Otherwise, it seem to ns, the proceedings must become quite complicated and confused, if the parties in interest attempt to make up issues on a petition filed in the original foreclosure suit.

We therefore think the circuit court properly refused to set aside the judgment of foreclosure and sale.