Argued April 10, 1968. —
Decided May 7, 1968.
APPEAL from an order of the circuit court for Milwaukee county: DONALD W. STEINMETZ, County Judge of Milwaukee County, Presiding. Reversed.
For the appellant there was a brief. and oral argument by S. S. Sanger of Milwaukee.
No brief or appearance for respondent.
This action to foreclose a second mortgage was commenced by IFC Collateral Corporation against Layton Park Building Loan Association (Layton Park) and other defendants. The complaint alleged Layton Park was the holder of first mortgages and Layton Park demurred to the complaint. Upon a stipulation signed by IFC Collateral Corporation and Layton Park but not the other defendants, the action as to Layton Park was dismissed without prejudice. Thereafter the action proceeded to trial against the other defendants and a foreclosure judgment was entered and a sale ordered subject to various liens to be determined by the court.
After a hearing to determine priorities of the liens, one of the defendants had the order dismissing Layton Park vacated and the demurrer of Layton Park was overruled. A third-party complaint which had been filed by another defendant was not answered by Layton Park, but that matter is not before the court. While this appeal was pending there was a motion made to require Layton Park to file the transcript of the trial on this appeal. This motion was denied.
Upon the call of this case for argument, the plaintiff-respondent IFC Collateral Corporation failed to submit its case. The court was informed the plaintiff was not interested in responding to the appeal, and Layton Park moved the court for a reversal as of course under sec. (Rule) 251.57, Stats. Upon this state of facts, we think the motion should be granted.
By the Court. — That part of the order of the trial court appealed from, overruling the demurrer of Layton Park to the complaint, is reversed.