Power v. Catlin

By the Court, Cole, J. It appears 'to us that chapter 101, Session Laws, 1856, is decisive of the question raised upon this appeal. Section 36, chapter 84, R. S., 1850, provided, that in case an absent defendant, against whom a decree should be made within six months after notice was given him of such a decree, or within three years after the decree had been made, in case no notice had been given, should petition the court touching the matter of such decree, he might be permitted to appear and make a defense to the bill filed, on complying with such reasonable, terms as the court might impose. And in the case of Berry vs. Nelson, 4 Wis., 375, this court held that this provision of the statute applied as well to foreclosure spits as other suits in [28] chancery; and that the effect of letting in the non-resident de-fe'ndent to answer, was to set aside all proceedings as to him, subsequent to the entering his default, including the sale. At the next session after the opinion in the case of Berry vs. Nelson, was given, the legislature passed the law of 1856, which provides that sectiion 36, chap. 84, should not be so construed as in any way to affect the validity of any sale made pursuant to any decree of the court, before the filing of the petition of such absent defendant. The .consequences of setting aside sales made under decrees of courts of equity, were at once perceived to be very serious, and no person was safe in buying property in a cause where there was a non-resident defendant, who could come in under this enactment in the R. S. So the legislature very wisely and properly interfered, and provided that when the nonresident was let in to answer pursuant to the statute, the validity of the sale should not in any wise be affected by the proceeding, and the party should pursue his remedy only against the proceeds of the sale. Such is the evident intent and object of the legislature in enacting the amendatory act. We, therefore, think the circuit court properly refused to set aside the sale which had been made on the foreclosure decree in the present case. It is contended, however, by the counsel for the appellant, that the law of 1856 could not apply to a case which had gone to a decree before the law took effect. The decree of foreclosure was rendered in May, 1855; the sale' of the mortgaged property was had in July of the same year, and the sale was confirmed in September following. There is certainly nothing in the language of the law of 185.6 which authorizes the conclusion that the legislature did not intend it should apply to a case like the one at bar; and we think it was competent for the legislature to make it so apply, if they saw fit to do so. It is assumed by the counsel for the appel [29] lant that this court decided otherwise in the case of Berry vs. Doty et al., 5 Wis., 605; but this is a mistake. The court held that the rights of the appellant in that case had been fixed, as they were defined under the Revised Statutes, by the filing of his petition, and in all other respects complying with the requirements of the thirty-sixth section, and that those rights were determined by the consideration and^judgment of the court at a former term, and before the amendatory act was passed; and, therefore, that the law could not operate, to impair or defeat rights which had become judicially established. But this case is clearly distinguishable from that of Berry vs. Doty et al. Here no petition was filed, or application made to the court until more than two years after the law of 1856 went into operation. No rights have become fixed by an adjudication and judgment of the court. It was only by virtue of the thirty-sixth section that the non-resident defen-dent could come in and have the sale set aside. And this right being now taken away, he must pursue his other remedies under the statute. The order of the circuit court refusing to set aside the sale is, therefore, affirmed.