Thomsen v. Gennrich, 186 Wis. 76

Thomsen v. Gennrich

186 Wis. 76 | Wis. | 1925

Doerfler, J.

Upon the hearing of the order to show cause which resulted in the making of the order of March 4, 1924, while the appellant did not personally appear, he was represented at the hearing by his trustee. In matters of this kind the trustee represents his cestui que trustent. Schroeder v. Arcade Theater Co. 175 Wis. 79, 184 N. W. 542.

A copy of this order, together with notice of entry, was served upon counsel for the appellant on April 7, 1924. Under the order last named the bid of the Pawling & Harnischfeger Company was accepted, the receiver was directed to carry out the sale according to the terms and conditions thereof, and said order provided in express terms that the property be transferred free and clear of all liens and incumbrances, and that all valid liens and incumbrances thereon be transferred to the proceeds of such sale in the respective order of preference and priority that existed prior to such sale. The appellant therefore being before the court by representation, and a copy of the order and notice of entry thereof having been served upon counsel for the appellant on April 7, 1924, an appeal should have been taken from such order within the time provided for by statute, assuming (but not deciding) that such order is an appeal-able one.

Counsel for Gennrich argues that the court had no^ jurisdiction or power to make such an order, for the reason that it deprived his client and his trustee of the right of redemption of prior mortgages during the period provided for redemption by the statute. This question has been considered and treated in Littlejohn v. Turner, 73 Wis. 113, 124, 40 N. W. 621, and in 34 Cyc. 320, where reference is made to other cases, under note 26,

*80The order of May 28, 1924, is principally one which directs the carrying out of the sale, directs the payment of the balance of the purchase price, the delivery of the deed, etc., and, in addition thereto, it authorizes the interpleading of certain defendants. In so far as the order directs the receiver to execute a deed free and clear of all incumbrances it is a mere administrative order, the object and purpose thereof being to carry out the provisions of the order of date of March 4, 1924, and such an order is not appealable, as was held in the case of Ajax Rubber Co. v. Western P. Co. 185 Wis. 74, 200 N. W. 668. In so far as the order provides for the bringing in of new parties it is not appeal-able, under Hoefer v. Milwaukee, 155 Wis. 83, 143 N. W. 1038; Fred Miller B. Co. v. Knebel, 168 Wis. 587, 171 N. W. 69; Bell L. Co. v. Northern Nat. Bank, 171 Wis. 374, 177 N. W. 616.

The appeal from the order of March 4, 1924, not having been taken until after the expiration of more than sixty days after the service of a copy of the notice of entry of such order, and the order of May 28, 1924, not being ap-pealable, the appeals herein must be dismissed.

By the Court. — Appeals dismissed.