Hooper v. Smith

43 N.W. 556, 74 Wis. 530, 1889 Wisc. LEXIS 141

Opinion

Cassoday, J.

This motion to set aside the sale of the Eau Claire lands, and the judgment for deficiency, was not made until more than nine months after such sale, and-more than eight years and a half after the entry of such-judgment, and more than eleven years and a half after a trial upon the merits and the rendition of the foreclosure judgment. The grounds for such motion consist in part of facts said to have existed prior to such foreclosure judgment, and in part of facts said to have transpired after-wards, and particularly an alleged settlement made in, April, 1879,' — some ten months prior to the entry of such judgment for deficiency. Certainly such motion could not be made to perform the office of an appeal. This has frequently been decided by this court. The affidavits and proofs presented on the hearing were very voluminous and conflicting, and others were to be filed in case of a hearing upon the merits. These things being so, it would have been improper to have determined the controversy upon such affidavits, and without a trial upon the merits. McDonald v. Falvey, 18 Wis. 571. The court might, possibly, have been justified in directing an issue and trial upon the merits. Ibid.; Cooley v. Gregory, 16 Wis. 303; Williams v. Troop, 17 Wis. 463. It appears from the "affidavits, however, that the rights and interests of certain persons who were strangers to the record of the foreclosure judgment are involved in the controversy. This being so, it seems to be an improper case to determine upon such motion. If the judgment for deficiency was wrongfully obtained and is inequitable, and the grounds qf the appellant’s motion are meritorious and he has not lost his rights by laches or otherwise, then there would seem to be no good reason why he should not be relegated to his remedy’ by action. That such an action may be maintained in a proper case has frequently been determined. Stowell v. Eldred, 26 Wis. 504; Barber v. Rukeyser, 39 Wis. 590; Hiles v. Mosher, 44 Wis. 601; Nevil v. Clifford, 55 Wis. 161; Ketchum v. Breed, 66 Wis. 85. The order in question was made without prejudice tó the appellant’s right to maintain such an action. There seems to have been no abuse of discretion in making the order.

By the Court.— The order of the circuit court is affirmed.