Packard v. Kinzie Avenue Heights Co.

70 N.W. 1066, 96 Wis. 114, 1897 Wisc. LEXIS 256

• Court: Wisconsin Supreme Court
• Decided: April 30, 1897
• Status: Published

Opinion

Newman, J.

The respondents do not claim that the entry of the judgment for deficiency was authorized, at the time of its entry, either by the terms of the foreclosure judgment or by the statute. R. S. sec. 3162. But it is claimed by them that its entry at that time was a mere irregularity, which does not render the judgment void, but only irregular, and valid until reversed upon appeal; that it is such an irregularity as can be waived by laches; that it was waived by the appellant by its failure to move promptly to set it aside.

It is true that failure to move promptly to take advantage of mere irregularities is often sufficient ground for the refusal of relief against them. But time does nbt cure or remove the irregularity. It surely cannot, on appeal, be held that the irregularity has been waived by delay, if the appeal from the irregular order or judgment is taken within the time allowed therefor by law. It must be quite immaterial, on appeal, whether a motion has been made to set the judgment aside, or that the court has refused to do so on the ground of laches. So it comes to the question whether the error is of sufficient importance to require a reversal of the judgment on appeal. That it is so is settled, for this court, by Danforth v. Coleman, 23 Wis. 528. That case, on its facts, is on all-fours with this case. It was there held that a personal judgment for a deficiency cannot be rendered before the deficiency becomes due by the terms of the contract, and the judgment was reversed on that ground.

The judgment being out of the way, the order refusing to set it aside becomes quite immaterial. The appeal from that order may well be allowed to fall with the judgment.

By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.