Hart v. Jos. Schlitz Brewing Co.

Cassodat, C. J. Tbe findings of fact are against the-plaintiffs, and in favor of tbe brewing company. Tbe plaintiffs seek to avail themselves of exceptions to certain of sucb findings to sustain tbe judgment — a practice which is per [556] missible. Sec. 3070, Stats. 1898, and notes. They claim that it appears from the preponderance of the evidence that the judgment of foreclosure and sale-was not entered January 14, 1896, nor until it was marked as filed by the clerk October 25, 1897. If that were so, then the sale was premature. The mere improper failure of the clerk to mark the judgment and the papers composing the judgment roll as filed did not prevent such filing from being effectual. Lang v. Menasha P. Co. 119 Wis. 1, 96 N. W. 393, and cases there ■cited. It is conceded that the judgment was signed by the "trial judge January 14, 1896, and contained the amount of -costs as taxed by the clerk at $82.58. There can be no reasonable doubt but that the judgment so signed, and the papers upon which it was based, were all delivered to the clerk ■at or about that time. Thereupon the duties of the clerk as ■to such judgment and judgment roll were prescribed by the ■ statute. Sec. 742, Stats. 1898. The trial court found that the findings in the foreclosure action, as originally drawn, provided for only $50 solicitor’s fees, and that the same was -erased and $100 inserted in place thereof, but that the evi■dence failed to show whether such change was before or after the rendition of the judgment, and therefore held that the ■same was made prior to the rendition of the judgment. Certainly it is not to be presumed that the findings or judgment were corruptly altered, especially as the trial court also found that there was no fraud on the part of the brewing company ■or its attorney or his clerk in the preparation of said judgment, or in the entry or filing thereof, or in anything done by them or either of them in respect to the same. The order of October 13, 1897, reducing the amount of the solicitor’s fees from $100 to $50, was made on the application of the brewing company. If the facts were as contended by the plaintiffs, then such order merely made the judgment conform to the original findings. Did the reduction of the solicitor’s fees in the judgment from $100 to $50, October 13, [557] 1897, make it a new judgment within the meaning of the-statute? Sec. 3162, Stats. 1898. That section provides that “the judgment shall fix the amount of the mortgage debt then due,” and also any installments to become due. It also prohibits any sale “until the expiration of one year from the-date of such judgment or order of sale.” Id. Another section gives a right to redeem “at any time before the sale.” Sec. 3165, Stats. 1898. The manifest purpose of these sections was to give all parties interested one year from the date of' the judgment or order of sale within which to redeem. Citizens L. & T. Co. v. Witte, 119 Wis. 517, 97 N. W. 161. The language of the statute seems to have been departed from in Andrews v. Welch, 47 Wis. 132, 135, 136, 2 N. W. 98. That case was criticised in a later case, wherein it was held: “If the judgment has been signed and filed with the clerk and the costs have been taxed and inserted therein, it need' not be recorded before the year will begin to run.” Meehan v. Bloodgett, 86 Wis. 511, 57 N. W. 291. Since that decision it has been held: “The correction of a mere clerical mistake in a judgment of foreclosure does not make a new judgment. The corrected judgment will stand as effective for all purposes as if properly entered in the first instance.” Bostwick v. Van Vleck, 106 Wis. 387, 82 N. W. 302. See, also, Packard v. Kinzie Ave. H. Co. 105 Wis. 323, 81 N. W. 488. Here the trial court, on the application of the brewing company, reduced the amount of the solicitor’s fees inserted in the judgment to $50, so as to conform to the amount contained in the findings as originally drawn. We must hold that such alteration did not make a new judgment, nor extend. the time for redeeming from the judgment which had thus been entered. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded, with directions to dismiss, the complaint.