State Bank of Wisconsin v. Abbott

| Wis. | Jun 15, 1866

Dixon, C. J.

The proceedings of foreclosure and sale in the former action were nugatory and fruitless, because the owners of the equity of redemption, the defendants in this action, were not made parties. Without claiming the costs of the former action, an d^without demanding judgment over for deficiency against these defendants, the plaintiff asks for a foreclosure and sale of the equity of redemption. Without having redeemed, and with no offer to do so, we do not well see how the defendants can resist the application. A party may not be allowed to proceed vexatiously; but if, through mistake or the want of proper parties, the first action proves ineffectual, we know of no rule which will prevent the institution of a second, provided the plaintiff pays his own costs in the first. We think this action may be maintained for the principal sum and interest due upon the note and mortgage. If the action were against Kalmerton, the maker of the note and mortgage, and judgment over against him for the deficiency were demanded, a different question would be presented. It may be that the judgment of foreclosure in the former action against him, and the sale for the full amount of the debt, interest and costs, extinguished his personal liability. It is possible that it extinguished all personal liability for tbe mortgage debt and interest. But of these questions we are not to speak, as they are not before us upon this appeal. If such was tbe effect of tbe former judgment and sale, tbat is all tbe effect wbicb can be given to tbem. In all other respects tbe plaintiff stands as if no proceedings whatever bad been bad.

If tbe former proceedings bad not gone to a sale, it may be, as suggested, tbat tbe better practice would be, to apply to tbe court to vacate tbe judgment and allow additional parties tobe brought in. But in tbat case even, we see no serious objection to tbe institution of a new action on condition tbat tbe plaintiff pays tbe costs of tbe former.

It is said tbat, as these defendants were necessary parties to tbe former action, tbe presumption is tbat they were made parties, and tbat tbe complaint is defective in not averring negatively tbat they were not parties. We are informed tbat tbe court below sustained tbe demurrer upon this ground. Tbe averment is tbat tbe former suit was against Kalmerton, and we construe it according to tbe natural import of tbe words, tbat it was against Kalmerton alone. This is sufficient; and if tbe present defendants were parties to tbat action, it devolves on tbem to show it.

By the Court. — Order reversed, and cause remanded for further proceedings according to law.