Wisconsin National Loan & Building Ass'n v. Pride

Dodge, J. 1. The first assignment of error is absence of evidence to support the finding of a liability secured by the mortgage for $119.25 of fines, or of any sum, for the reason that no proof was made of by-laws authorizing such fines, nor of any corporate action imposing them. The complaint alleges that the fines imposed in accordance with the by-laws amounted at the time of the commencement of the action to $55.65, and that further fines would accrue at the rate of five cents per share per month on each instalment, and a witness testified that, so computed, the amount at the date of the findings was $119.25. As against appellant these allegations of the complaint were without denial, she having interposed no answer. In the absence of denial the allegations of the complaint stand confessed in nonpresence of infant or nonresident defendants, although a discretion rests in the trial court to require proof thereof before rendering judgment if he shall think necessary to safety. Sibley v. Weinberg, 116 Wis. 1, 92 N. W. 427. This rule would justify the judgment but for the fact that plaintiff did introduce evidence which is brought before us by the bill of exceptions. By that evidence, and by the undenied allegations of the complaint, it was established that at or before the time of commencing this action the corporation had exercised its right under sec. 2014, Stats. (1898), to forfeit the defendant Charles A. Pride’s shares of stock and to terminate his membership therein. It is very obvious that the statute does not contemplate that a person shall continue liable month by month for fines upon instalments agreed to be paid on stock [105] in a building and loan association after be shall have ceased to be such member by the act or consent of the corporation. These fines under the statute are imposed on the member in his capacity as such. They are not authorized to be imposed for default in payment of interest on moneys that he may have borrowed from the corporation in his capacity of a debtor or mortgagor. Therefore, while the court’s allowance of fines to the extent of $55.65 accrued to the time of forfeiture is supported by the allegations of the complaint and not refuted by evidence, the amount allowed for fines accruing after that time and included in the judgment is in defiance of undisputed evidence, and the inclusion thereof in the judgment was a material and prejudicial error. 2. The judgment orders the entry of a deficiency judgment against the appellant. The right to such a judgment in the foreclosure of a mortgage is purely statutory. Witter v. Neeves, 78 Wis. 547, 47 N. W. 938; Marling v. Maynard, 129 Wis. 580, 109 N. W. 538. The only support therefor is sec. 3156, Stats. (1898), providing that the plaintiff may unite with his claim for foreclosure “a demand for judgment for any deficiency.” The complaint before us contains nothing in addition to the prayer for foreclosure and sale except the usual prayer for general relief, “as is provided by law in such cases and as may be just and equitable.” This is in no reasonable sense a demand for the special statutory deficiency judgment contemplated by sec. 3156. It does not fairly notify a defendant of any purpose on the part of the plaintiff to seek such relief. By sec. 2886, Stats. (1898), it is provided: “The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint.” In view of these considerations, and the clear words of the statute, we cannot doubt that the portion of the judgment ordering a deficiency judgment is erroneous because in excess of the relief demanded in the complaint. Sec. 2886, Stats. (1898) ; Zwickey v. [106] Haney, 63 Wis. 464, 23 N. W. 677; McKenzie v. Peck, 74 Wis. 208, 42 N. W. 247. It is suggested that no appeal lies therefrom for the reason that the appellant is not as yet injured, because there may be no deficiency. While this argument is not without weight if the question might be considered res nova>, it is in defiance of numerous decisions of this court to the effect that such a judgment as now before us is the final judgment in the action, conclusive of the rights of the parties, and that erroneous inclusion therein of an order for personal deficiency judgment is ground for appeal therefrom. Gaynor v. Blewett, 86 Wis. 399, 57 N. W. 44; Pereles v. Leiser, 123 Wis. 233, 101 N. W. 413. 3. Eurther error is assigned on the order for appointment of a receiver upon motion on the foot of the judgment in case the premises cease to be occupied as a homestead. This order is supported by tire undenied allegations of the complaint that defendants have committed waste upon the premises by permitting them to be sold for taxesj that the premises are scant and inadequate security for the sum secured, and that plaintiff fears further acts of waste. These allegations are taken as true, and are supplemented by the express agreement in the mortgage assigning to the plaintiff the rents and profits. We cannot think the order for a receiver, after the defendants shall have abandoned their homestead occupation, is an abuse of judicial discretion. By the Court. — Judgment is modified as of its date by reducing the amount due on the mortgage to $5,696.81 and by reducing the total amount adjudged in favor of the plaintiff to the sum of $6,036.81; and it is further modified by striking therefrom the order that judgment be rendered against the appellant, Sarah E. Pride, for the deficiency arising on foreclosure sale. As so modified it is affirmed; the appellant to recover costs in this court.