Flood v. Isaac

34 Wis. 423

• Court: Wisconsin Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

LyoN, J.

Action to foreclose a mortgage. The appellant is a subsequent purchaser of the mortgaged premises. Notice of the pendency of the action was filed in the proper office July 30th, 1872; but the complaint in the action was not filed until June 5th, 1873. Judgment of foreclosure and sale was rendered by the court, and duly perfected and entered June 6th, 1873.

The only question presented for our determination is, whether notice of the pendency of the action was properly filed twenty days before the judgment was entered. If it was not, the judgment must be reversed; for the statute is imperative, that in an action for the foreclosure of a mortgage the notice must be filed twenty days before judgment. Tay. Stats., 1428, | 7. If not so filed, the judgment is irregular, and should be reversed on the appeal of any party to the action. Manning v. McClurg, 14 Wis., 350; Catlin v. Pedrick, 17 id., 88.

■ The statute provides as follows: “ In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterward,” may file such notice. No' authority is given to file it before that time. Hence, although the notice in this action was filed, in form, ten months or more before the rendition .of the judgment, such filing was entirely inoperative until the complaint was filed. It bound no one, and was notice to no one, before the filing of the complaint. The case is in the same position as though the notice had been filed for the first time on the day preceding the entry of the judgment.

It is inevitable that the judgment must be reversed, and the cause remanded for further procedings according to law.

By the Court, — So ordered.