Spraggon v. McGreer

14 Wis. 439 | Wis. | 1861

By the Court,

Paine, J.

Notwithstanding what was said in the case of Boyd vs. Weil, 11 Wis., 58, on the subject of filing a notice of lis pendens, we have at the present term, in Manning vs. McClurg, held that a failure to file such notice properly, is a defect of which the mortgagor may take advantage. We there held that under our statutes the proof of the filing is no part of the record, and that where the judgment recited that proper proof was’ given, it could not be reversed unless it appeared of record that it was not so. It follows that in such cases, unless the mortgagor is present and objects to the proof and makes his objection and the proof offered a part of the record, the proper way for him to take advantage of the defect, is to move to set the judgment as^e’ on tibe facts, as was done in this case. The affidavit showing that the lis pendens which was filed did not describe the lands mentioned in the mortgage, it is as though no notice at all was filed, and the judgment ought to have % been set aside for that reason.

The order denying the motion is reversed, with costs, and the cause remanded for further proceedings.