99 Wis. 625 | Wis. | 1898
It appears from the record that January 6, 1893, the defendant Abraham Levine, for value received, made his promissory note, payable to the order of the defendant Land <& River Improvement Company January 6, 1896, for $1,500, with interest t'hereon at eight per cent, per annum, payable semi-annually, as a part of the purchase price
On February 24, 1896, the plaintiff commenced this action to foreclose such note and mortgage. The complaint therein alleged the facts stated, and other facts more in detail, and that the plaintiff was the lawful owner and holder of the note and mortgage, and the amount due thereon, and prayed the usual judgment of foreclosure and sale, and that the sheriff be required to make report of sale according to law; and prayed that the judgment should order that if the moneys arising from such sale should not be sufficient to satisfy the judgment, costs and disbursements, and expenses aforesaid, judgment be rendered, upon the filing and confirmation of the report of sale, specifying the amount of such deficiency, against the defendants, Abraham Levine and land dh River Improvement Company, who were personally liable for the debt secured by the mortgage for the amount of such deficiency, with interest thereon from the
Judgment of foreclosure and sale was entered in the action June 1, 1896, reciting, among other things, that a referee had been appointed therein to compute and ascertain the amount due to the plaintiff upon the note and mortgage, also which of the defendants were personally liable for the amounts secured thereby; that the referee had reported, among other things, that there was due to the plaintiff on the note and mortgage $1,630.80, and $75 solicitor’s fees, and that the defendant Land <& Liver Improvement Company was personally liable, as indorser, for said sum of money secured by the note and mortgage. The court adjudged that all the allegations of the complaint were true, and that the report of the referee be confirmed, and found that there was due to the plaintiff the amounts stated. It was further adjudged that the defendant Abraham Levine and the defendant Land <& Liver Improvement Company were, and each of them was, personally liable for the indebtedness aforesaid; that, if the proceeds of such sale be insufficient to pay the amount aforesaid, the sheriff should specify the amount of such deficiency in his report of sale; and judgment for such deficiency was thereby ordered to be separately rendered against the defendants, Abraham Levine and Land dh Liver Improvement Compmy, who were personally liable therefor, as therein adjudged, on or before the coming in and confirmation of the report of sale, to be docketed and enforced as in other cases. The sheriff made such sale, and filed his report thereof July 20, 1897. On July 27, 1897, it
On November 9, 1897, the defendant Land (ft River Improvement Company moved the court, upon the records and files in this suit, and upon all the papers made, served, and filed therein, and upon all proceedings therein taken, for an order vacating and setting aside the judgment rendered and entered in this suit July 27, 1897, against the defendant Land (ft River Improvement Company for $772.77. Upon the hearing of that motion, November 10, 1897, it was ordered by the court that the motion be, and the same was thereby, denied, with $10 costs. Erom that order, and from the judgment for deficiency so entered July 27, 1897, the defendant Land eft River Improvement Company brings this appeal.
"We are asked to reverse the judgment for deficiency, and the order refusing to se,t aside that judgment, for the reason that the complaint fails to state facts sufficient to constitute a cause of action for personal liability of the defendant the
Rut there is another satisfactory reason why the objection now raised is unavailable. The judgment of foreclosure and sale entered June 1, 1897, determined the rights of the parties. It adjudged the Land & River Improvement Oompam/y to be liable for any deficiency. That judgment is binding upon the appellant, and is not appealed from. Kane v. Will
By the Oowrt.— The order and judgment of the circuit court, appealed from, are both affirmed.