Olinger v. Liddle

Lyon, J. The judgment of foreclosure and the judg- • ment for deficiency are each appealable. But both cannot be included in one appeal. Ballou v. Chicago & N. W. R'y Co., 53 Wis., 150. Here it is attempted to take one appeal from both judgments. This is fatal to the appeal. Counsel for appellant argued that the appeal is from the judgment for deficiency alone. He claims that the statement in the notice, that the appellant “ appeals from the whole and [623] every part thereof,” refers only to that judgment, and that the notice is inoperative as an appeal from the foreclosure judgment because the statute requires that the notice must specify whether the appeal is from the whole or some part of the judgment or order appealed. E. S., sec. 3049. We cannot adopt this view. "We think the specification refers to both judgments and, were such appeals admissible, should not hesitate to review both on this appeal. A question of practice was raised by the same learned counsel. He maintained that because no written motion to dismiss the appeal has been filed here, this court should not entertain the motion. The practice in this court does not require the filing of such motion. Proof of due service of a notice of motion is sufficient in any case. However, when the record discloses that the appeal has not been regularly taken, no notice of motion is necessary. Upon the fact appearing, the court will dismiss the appeal on oral motion, or without motion. The cause was argued on the merits, and it was claimed that the judgment for deficiency should be reversed, because the complaint contains no sufficient prayer to authorize the entry of the judgment. The court is authorized to enter judgment for deficiency only where the complaint contains a demand therefor. E. S., 817, sec. 3156. The complaint in this action contains a demand of execution .for any deficiency remaining unpaid after applying on the mortgage debt the proceeds of the sale of the mortgaged premises. The language is, “ and that the plaintiff may have execution for any balance remaining unpaid,” etc. We deem it advisable to say we are of. the opinion that construing the complaint liberally, with a view to substantial justice between the parties (E. S., sec. 2668), it ought to be held sufficient to authorize judgment for a deficiency. By the Oowrt.— The appeal is dismissed.