15 Wis. 583 | Wis. | 1862
By the Court,
The record in this case shows that the appeal is from the judgment of foreclosure rendered October 29th, 1858. It is therefore clear that the subsequent order made by the court on the application to vacate the judgment of foreclosure, is not before us, and cannot be considered. For we have already held that an appeal from
It is claimed, however, that the judgment is erroneous for several reasons which, it might be argued, appear upon the face of the record itself It is said that it appears from the pleadings in the cause, that Willard's mortgage was a prior unrecorded one, and that the respondent had full notice of its existence when he took the subsequent one which is foreclosed in this action. If this were so, then, as a matter of course, the judgment should have provided for the payment of that mortgage first out of the proceeds of the mortgaged property. But can we fairly presume from the record that this position is sound and sustained by it ? It is true that it appears from Willard's answer, that he held a prior mortgage which was recorded subsequently to the recording of the mortgage held by the respondent. And he states, upon information and belief, that the latter had full notice of the existence of this unrecorded mortgage at the time the one to him was executed. There was no replication to this answer, and it is insisted that it must have the same effect as evidence, which was given to a sworn answer under the chancery practice, to which no replication was filed. The bill in this
But there is a further and most conclusive answer to be given this argument. There is no bill of exceptions, and we cannot assume tbat tbe j udgment of tbe circuit court is erroneous. On tbe contrary, we must presume tbat there was testimony offered on the trial which clearly and conclusively overcame the statements in tbe answer, and showed that the respondent took bis mortgage in good faith, without any notice whatever of tbe prior mortgage to tbe appellant. Since the adoption of the Code, a party assailing a judgment must show wherein it is erroneous, and this applies as well to equity as to common law causes. And if no evidence was offered on the trial tending to impeach tbe allegations in tbe
It was further objected that there was no sufficient finding of facts by the court to authorize a judgment. The finding, it is true, is in very general terms. The court finds all the facts set forth in the complaint as amended. In an equity cause such a finding has been held sufficient when no exception is taken to it on the trial. Catlin vs. Heaton, 9 Wis., 476.
It was likewise insisted that the judgment was irregular, because, while the suit was instituted against certain parties named in the bill, the return of the sheriff on the subpoena, and the answer of one of the defendants, disclosed the fact that Mrs. Clothier deceased before the commencement of the suit, and the cause was not revived as to her, nor her death suggested on the record. But this objection is clearly untenable. All the interest which Mrs. Clothier ever had in the premises was an inchoate right of dower, and even this possibility terminated at her death. What necessity was there then of further naming her in the pleadings?
Neither do we think there is any weight in the objection that the court could not allow and incorporate in the judgment, by virtue of section 219 of the Code, any greater sum than seventy five dollars, the amount named in the mortgage. The sum which was stated in the mortgage cannot be considered as a stipulated amount in lieu of what the court might allow under that section. This is very manifest from the fact that when this mortgage was executed, the Code had not been adopted. So we suppose the court might allow any amount not exceeding the limitation named in the section if it saw fit to do so.
We believe this disposes of all the objections which have been taken to the proceedings and which are properly before us, except the one relating to the variance between the complaint and judgment. The bill describes the interest