April 8, 1942 —
May 5, 1942.
APPEAL from an order of the circuit court for Brown county: HENRY GRAASS, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the brief of Eberlein Eberlein of Shawano, substituted in place and stead of A. B. Fontaine, deceased.
For the respondent there was a brief by North, Bie, Duquaine, Welsh Trowbridge of Green Bay, and oral argument by Rodney C. Welsh.
Foreclosure action. On April 4, 1935, the plaintiff began an action against the defendant to foreclose a mortgage upon which there was then due the sum of $5,750, with interest from the 10th day of April, 1932. On the 30th day of September, 1935, the usual judgment of foreclosure was entered, the total amount of the judgment being $7,276.43. On February 2, 1937, the sheriff sold the premises and the same were bid in by the plaintiff for the sum of $6,000. The sheriff's report of sale was filed February 11, 1937, and on February 8, 1937, the plaintiff gave notice of motion for an order of confirmation of sale and for a deficiency judgment against Joseph P. Francois, the appellant. On February 18, 1937, deficiency judgment was entered against Francois for $3,570.41. On October 18, 1937, a motion to vacate the order confirming the sale and the deficiency judgment was heard. On March 13, 1939, nearly a year and a half later, the court filed its decision, and on May 10, 1939, filed its supplemental decision, both in favor of the defendant. Extended so-called findings of fact and conclusions of law were filed, and the court directed judgment to be entered accordingly. No judgment or order was entered. On May 13, 1939, the appealing defendant served an order upon the plaintiff requiring plaintiff to show cause why the judgment of foreclosure and sale should not be amended as hereinafter indicated. This motion came on for a hearing, and on September 9, 1940, the order from which this appeal is taken was entered.
The order deals with two separate motions. Apparently the findings of fact and conclusions of law theretofore signed by the court were ignored and the motion heard on October 18, 1937, was reconsidered. The court disposed of that motion by the following recital and order:
"The motion of defendant Joseph P. Francois for an order vacating the order entered February 17, 1937, confirming the sale on foreclosure and vacating the judgment for deficiency entered February 18, 1937, having come on to be heard on the affidavit of A. B. Fontaine, the judgment roll in this action, the note and mortgage, the extension agreement between plaintiff and defendant Joseph P. Francois, the petition and order authorizing the extension agreement and the affidavit of Rodney C. Welsh; . . .
"It is ordered: . . . That the motion of the defendant Joseph P. Francois for an order vacating the order entered February 17, 1937, confirming the sale on foreclosure and vacating the judgment for deficiency entered February 18, 1937, be and is hereby denied . . . ."
While no mention was made of the findings of fact and conclusions of law dated May 10, 1939, the entry of this order, ignoring as it did the findings and conclusions, operated to deprive them of any legal effect. The other part of the order of September 9, 1940, contained the following recitals and order:
"The motion of defendant Joseph P. Francois to amend the judgment of foreclosure and sale entered in this action to conform to the facts, the truth, the record and the law as prayed in the affidavit of A. B. Fontaine and the records, documents and papers above enumerated; . . .
"It is ordered: . . . The motion of defendant Joseph P. Francois to amend the judgment of foreclosure and sale entered in this action to conform to the facts, the truth, the record and the law as prayed in the affidavit of A. B. Fontaine, subscribed and sworn to May 13, 1939, be and is hereby denied."
There would seem to be one complete and all-sufficient answer to the contentions made on behalf of the defendant Francois in this case. The deficiency judgment was entered on February 18, 1937, and notice of entry thereof served. These motions were made under sec. 269.46, Stats. Under this section, it is not enough that a motion be made within a year but the court must act within a year. Fischbeck v. Mielenz (1916), 162 Wis. 12, 154 N.W. 701; Elmergreen v. Kern (1918), 167 Wis. 560, 168 N.W. 407. While it is true that no notice of entry of judgment of foreclosure was served upon the defendant Francois, notice of entry of deficiency judgment was served, and he certainly had notice of the judgment of foreclosure when he made his motions in this case. It is clear therefore that at the time the order appealed from was entered the court had no power or jurisdiction to amend the judgment entered in 1937. The defendant Francois seeks to avoid the effect of this rule and makes the following claim:
"We stress the fact that the plaintiff's errors from the complaint to and inclusive of the judgment operate as a fraud against which the court has the inherent power to relieve in all circumstances."
The claim that the commission of error by a court operated as a fraud, we consider to be without merit and frivolous. In this case the court was not misled by any fraud, constructive or otherwise. What the appealing defendant seeks to do in this case is to relitigate matters disposed of by previous judgments and orders of the court. This court has held from the earliest day that where no appeal is taken from an order (or judgment) within the time limited, mere error in an order cannot be reached by appealing from an order denying a motion to set it aside. Van Steenwyck v. Miller (1864), 18 Wis. *320; Will of Skrinsrud (1914), 158 Wis. 142, 147 N.W. 370; Fred Miller B. Co. v. Knebel (1919), 168 Wis. 587, 171 N.W. 69; Hogensen v. Prahl (1926), 190 Wis. 214, 208 N.W. 867.
The alleged error of which the appealing defendant complains is that the plaintiff in his complaint asked for judgment —
"for any deficiency remaining unpaid after applying the proceeds of said sale thereon as prescribed by law against the said Emil Hauterbrook and Mary Hauterbrook, his wife, and Joseph P. Francois, who are personally liable for the payment of the debt secured by said mortgage."
The liability of the defendant Francois is set forth in the nineteenth paragraph of the complaint as follows:
"That thereafter, to wit, on the 5th day of October, 1931, the defendant Joseph P. Francois for value received, by instrument in writing dated on said day, assumed and agreed to pay the mortgage above described, according to the terms thereof."
The agreement entered into provided:
(1) For the extension of the mortgage; (2) for payment of $540 forthwith; (3) "That the principal of said mortgage shall be payable in monthly instalments of $50 per month, interest at 6% per annum payable semiannually;" (4) "That the whole of the remaining unpaid principal shall be payable at any time at the option of the second party, on or before five years from the date hereof;" (5) "That the second party assumes and agrees to pay the trustee's mortgage according to the terms hereof."
It was admitted by the plaintiff that by entering into this contract for extension of the time for valuable consideration with the defendant Francois, the Hauterbrooks were discharged from personal liability on the note which was secured by the mortgage. The appealing defendant contends that the plaintiff was not entitled to judgment for deficiency against him and that the judgment was void. We regard this contention as specious, and it ignores the very evident fact that by the execution of the agreement for extension Francois became as between the parties the principal debtor. That has been the law of this state at least since Fanning v. Murphy (1906), 126 Wis. 538, 105 N.W. 1056. It is equally evident that no judgment was taken for a greater amount than that demanded in the complaint, hence the appealing defendant's claim that the court was without jurisdiction to enter the judgment is without support in the record. While the record in this case is one of which no court can be proud, it is evident that at all times the court had jurisdiction. Assuming, without deciding, that it was in error in entering the judgment for deficiency, that is a matter which cannot be relitigated in this proceeding and the contentions of the appealing defendant are without merit. The appeal quite evidently can serve no other purpose than to hinder and delay the plaintiff in the enforcement of its judgment. For these reasons it is considered that the appeal in this case is without merit and frivolous and the plaintiff may tax double costs as provided in sec. 251.23 (3), Stats.
By the Court. — The order appealed from is affirmed with double costs.