Hays v. Lewis

21 Wis. 663

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Downer, J.

The judgment of the circuit courtis erroneous in directing a sale of the mortgaged premises without redemption. If this were the only error, we might modify the judgment instead of reversing it. But the defendant Wheeler has not been served with process, and is not before the court. He is not only a proper but a necessary and indispensable party. There was an attempt made to serve the summons by publication on him. But the summons published is not signed by the plaintiff’s attorney, and does not state where the complaint is or will be filed. The record does not show that the court obtained any jurisdiction over his person or property. The plaintiff, in the argument, maintained that the assignment of the mortgage to Wheeler was without consideration and fraudulent, and tbe proof tends to sustain him in this position ; and yet there is no allegation in the complaint relating to the assignment to Wheeler. He is the proper person to raise the question as to the validity of the parol trust, and it is doubtful whether any person other than the mortgagee or his assignee has any right to raise it We do not, therefore, deem it best to pass upon that question till Wheeler is before the court.

By the Court — The judgment is reversed, and the cause remanded for further proceedings.