Carpenter v. Meachem

WiNsiow, J. In that portion of the answer which is challenged by the demurrer the defendant attempted to allege by way of affirmative defense a former adjudication upon the same cause of action in bar, as well as a supposed fraud committed by the plaintiff in concealing from the defendant the fact of the pendency of the foreclosure proceedings. The insufficiency of the allegations to make out either of the supposed defenses seems quite plain. In order to constitute .a previous adjudication a bar, it must have been rendered hy a court of competent jurisdiction, upon the same cause of action, and in an action between thé same parties, their privies, or representatives. The defendant could have been [63] made a party to the foreclosure action, and a judgment obtained against bim for any deficiency arising upon the foreclosure sale. Stats. 1898, sec. 3156; Palmeter v. Carey, 63 Wis. 426. Such judgment, if rendered, would have been upon the same cause of action here sued on, and, if the record showed service of the summons upon the defendant, would have been a prior judgment between the same parties. But the difficulty is that the answer affirmatively shows that the- summons in that action was never served upon the present defendant. It must necessarily be inferred that the record in that action corresponds with the truth, and that it affirmatively appears therefrom that no service was made upon the defendant, and hence that no jurisdiction was obtained over him, or, in other words, that he was not in fact a defendant in that action, and the judgment rendered therein was not a judgment between the parties to the present action. This consideration is conclusive upon this point. It demonstrates that there has been no previous judgment between the parties, notwithstanding the fact that the defendant may have been named as a party in the title of the action. It appears by the opinion of the trial judge, which is returned with the record, that he considered the case as one where the doctrine of election of remedies might be applied, and that, it appearing by the answer that the plaintiff had elected to obtain a deficiency judgment against the defendant in the foreclosure action, he was, by that act, prevented from afterwards seeking relief in an action at law, notwithstanding he had obtained no valid judgment in the foreclosure action. The doctrine of the election of remedies is well understood, and it is well settled that the election, when once made in a proper case, is final and cannot be reconsidered. Carroll v. Fethers, 102 Wis. 436. But the doctrine of election is confined to cases where the plaintiff is required to choose between two remedies which are incon [64] sistent with each other, such as a remedy in tort and a remedy, in contract. 7 Ency. of Pl. & Pr. 362; Fuller-Warren Co. v. Harter, 110 Wis. 80. The plaintiff has not attempted to invoke two inconsistent remedies. The remedy by judgment for deficiency in the foreclosure action is perfectly consistent with the remedy by judgment in an action at law upon the notes. One remedy is by action in equity, and one by action at law, but both affirm and seek to enforce the written contract upon the same grounds. So it is apparent that the unsuccessful attempt to make the defendant a party to the foreclosure action, and bind him by the judgment therein, is no bar to the present action, either by way of former adjudication or by way of election of remedies. The defense of fraud in the foreclosure of the mortgage by purposely concealing from the defendant the fact of the pendency of the foreclosure action seems not to have been considered as of any importance by the trial judge, and is not even mentioned in the opinion filed by him. It is, however, relied upon by the defendant in his brief in this court. The defendant was, as shown by the pleadings, an intermediate purchaser, and at all times a nonresident. The only fraudulent act alleged is that he was not served with the summons. He was not a necessary party to the foreclosure. The plaintiff could make him a party or not, as he chose. In not serving the summons upon him, the plaintiff simply exercised a legal right, and it is difficult to see how a charge of fraud can be predicated thereon. So far as the answer shows, every step in the foreclosure proceedings was carried out with all the publicity required by the statute. By the Court.— Order reversed, and action remanded with directions to sustain the demurrer.