Prahl v. Rogers

Maeshall, J. Counsel for appellant with much authority presses upon our attention the idea that a writ of assistance to put a purchaser at a foreclosure sale in possession of the property should only be issued upon notice to the occupant, and should not be issued at all against one not a party to the [359] foreclosure suit. There is this fundamental infirmity in that position. It is based mainly on decisions in other states under statutes or court rules differing from ours and decisions and practice at common law. It is useless, generally, in treating a matter of procedure to go outside of our own statutes and court rules, and decisions applying the same. They make up the system in its entirety for all judicial proceedings in this state. Kollock v. Scribner, 98 Wis. 104, 117, 73 N. W. 776. On the question of what is the appropriate remedy in a given situation and how to invoke judicial instru-mentalities in respect to the matter, and everything that has to do with remedies and procedure to make them efficient, the Code and court rules as uniformly applied under the direction of this court control. Less attention to common-law forms and practices and less attention to decisions in other states, and more attention to the written law as found in our statutes and rules of court, as construed and applied, would greatly promote the administration of justice. Sec. 3187, Stats. 1898, provides that from the time of the filing of the notice therein authorized the pendency of the action “shall be constructive notice thereof to a purchaser or incumbrancer of the property -affected thereby; and every purchaser or incumbrancer whose conveyance or incumbrance is not recorded or filed shall be deemed a subsequent purchaser or incumbrancer and shall be bound by the proceedings in the action to the same extent and in the same manner as if he were a party thereto,” and sec. 3169, Stats. 1898, provides, as to the effect of a sheriff’s deed of foreclosure and the confirmation of the sale, that the same “shall vest in the purchaser all the right, title and interest of the mortgagor, his heirs, personal representatives and assigns in and to the premises sold and shall be a bar to all claim, right or equity of redemption therein, of and against the parties to such action, their heirs and personal representatives, and also against all persons claiming under them subsequent to the filing of [360] the notice of the pendency of the action in which such judgment was rendered; and the purchaser, his heirs and assigns shall be let into the possession of the joremises so sold on production of such deed or a duly certified copy thereof, and the court may, if necessary, issue a writ of assistance to deliver such possession.” The manner of obtaining the writ, it will be. seen, is left entirely to the wisdom of the court, in the absence of any rule on the subject prescribed by this court, and there is none. The trial court may require notice to the occupant of the property of the application for the writ or not as in his judgment may seem best in the particular case. What would be proper and reasonably necessary in one case might not be in another. Formerly there was a rule allowing the writ to be issued by the clerk. Under that it was held that without an order of court the clerk could not act as against one not a party to the record. That is the effect of Loomis v. Wheeler, 21 Wis. 271, cited by counsel for appellant, when read in connection with Qoit in the suit of Knapp v. Dickermann, 20 Wis. 630. The rule was adopted without a very careful regard for the language of the statute providing for its issuance only by the court or pursuant to its order. It was not altogether easy, it will be seen, by reference to the two cases cited to administer the statute in its letter and at the same time give effect to the rule in its letter. That difficulty long ago was remedied by a discontinuance of the rule. Loomis v. Wheeler, supra, however, remains and is liable to lead one astray as it seems to have done in this case. It is best to disregard the case altogether and look to the statute, which puts no restraint whatever upon the court as 1» necessary proceedings preliminary to the issuance of the writ. It will be observed that Qoit in the suit of Knapp v. Dickermann, supra, •so far as it treats of the authority of the court to issue the writ, clearly recognizes that no notice to the occupant is necessary. Attention is there called to the faGt that the practice [361] in New York under a similar statute is to issue tbe writ ex parte. Tbe written law provides, specially, ,for tbe issuance of a writ of assistance in most cases where one is needed. Doubtless, under tbe general statutory grant of authority as to tbe issuance of writs one might be issued, if necessary, in a case not so expressly provided for, tbe act to be characterized by such reasonable procedure as to tbe court might seem just. As we have seen in tbe statute in question no notice is required in harmony with tbe fact that the occupant of tbe property, actually or constructively, is deemed to be a party to tbe action, and, therefore, chargeable with notice1 that tbe ordinary and usual proceedings in tbe execution of tbe judgment will occur. In case of title under a sale on execution notice is required under sec. 3025, Stats. 1898. Tbe same is true in case of title acquired in condemnation proceedings .under sec. 1850, Stats. 1898. Tbe proposition that tbe writ of assistance in a case of this sort can only issue against a party to tbe record is answered by tbe statute to which we have referred quite as definitely as the proposition we have already specially treated. Tbe one provides that a person who connects himself with tbe title to tbe subject of the foreclosure subsequent to the commencement of tbe action under one who is a party thereto, after tbe filing of tbe notice of tbe pendency of tbe action is to all intents and purposes a party to tbe action, and tbe other provides that tbe judgment and deed of foreclosure and its confirmation shall bind equally the parties to tbe action who are named and those coming into privity with them after tbe filing of tbe notice of the pendency of tbe action. All are liable to be dealt with in proceedings for tbe execution of tbe judgment as equally bound. As it has been said: “Tbe judgment is binding on all parties against whom it was rendered, and all others coming into possession under them after suit brought, and not in pursuance of a specific [362] right in the property previously acquired. Against all such,, the writ of assistance should be executed by the officer.” Gelpeke v. M. & H. R. Co. 11 Wis. 454, 461; Smith v. Pretty, 22 Wis. 655; Brown v. Cohn, 88 Wis. 627, 635, 60 N. W. 826; Cypreanson v. Berge, 112 Wis. 260, 264, 87 N. W. 1081. The foregoing has no reference whatever to cases where-there is a party in possession-under title not reached by the foreclosure judgment. In that situation or in case of a fair-controversy as to whether such situation exists the parties should be left to their remedy by action. Smith v. Pretty, supra; Stanley v. Sullivan, 71 Wis. 585, 37 N. W. 801. The claim that the purchase at the foreclosure sale was, or should have been, made in the interest of August E. Stadl-bauer, under whom appellant claims, and that respondent is-chargeable with notice that he is a mere successor trustee for appellant, rests wholly on information and belief and was unequivocally denied by and on behalf of respondent. Had the papers used on the motion to set aside the writ shown a reasonable probability that the claim of the appellant could be-maintained, the court would have been justified, if not required, to leave respondent to his ordinary remedy by action to test the truth of the matter. Evidently the trial court did not consider the showing made was sufficient to indicate any such probability, and in our judgment it was fully warranted in so holding. True, there was considerable delay in applying for the writ, but mere delay in such a case is not sufficient to warrant-denying the use of the remedy. It does not appear that any right adverse to respondent accrued during the delay nor is in-any way attributable thereto. No equities superior to nor impairing in any respect the right of respondent appear to-have been created subsequent -to the entry of the foreclosure judgment. The right to the remedy is not absolute. Grounds-for withholding it in the discretion of the court may exist363 Tbe court is clotbed with pretty broad discretionary power in respect thereto, but after all, one holding a sheriff’s deed issued on a foreclosure sale, duly confirmed, is prima facie entitled to his writ to be put in possession of the subject of the purchase. It cannot be withheld without some reasonable cause, mere delay not being sufficient. As it is said, “where there is no ground for the discretionary withholding of the-right it (the writ) issues ex debito justitiw and as much a matter of course as an execution on a judgment.” It seems that the seal of the court was omitted from the writ. That was an amendable irregularity, which was waived by the appearance and motion to set aside the writ on its merits. In the circumstances of the appellant’s procedure it falls under sec. 2829, Stats. 1898, as counsel for respondent suggests. By the Gourt. — The order is affirmed.