Homestead Land Co. v. Saveland

Barnes, J. In Gaynor v. Blewett, 86 Wis. 399, 400, 51 N. W. 44, the court said: “The statute (sec. 3156, B. S.) requires that judgment for the deficiency shall be ordered in the original judgment. The-order is a necessary part of the judgment of foreclosure, and it is a final adjudication of the defendant’s common-law liability for the debt. The formal judgment is rendered and docketed as of course, on the coming in and confirmation of' the report of sale showing the amount of the deficiency.” That part of a foreclosure judgment which orders a judgment for deficiency is appealable, and an appeal from the-judgment entered after confirmation of sale does not enable-the appellant to litigate the question of his personal liability adjudicated by the foreclosure judgment, in the absence of' an appeal from that judgment. Richards v. Land & R. Imp.. Co. 99 Wis. 625, 75 N. W. 401. Where the time has expired within which an appeal may be taken from the foreclosure judgment, the deficiency judgment rendered in accordance therewith cannot be reviewed on appeal. Pereles v. Leiser, 123 Wis. 233, 101 N. W. 413. The defendant Saveland did not ask the court to set aside-so much of the foreclosure judgment as adjudged him to be-personally liable for any deficiency that might occur. The language used in the motion papers and in the order granting the relief asked for is the same. The court ordered: “That said judgment for deficiency entered in this action-on the 13th day of May, 1905, in favor of the plaintiff, and against the defendant Tennis W. Saveland, for the sum of' $408.13, damages and costs, be, and the same is hereby, va [667] cated and set aside as to the defendant Tennis W. Saveland,. and he is hereby permitted to serve and file his answer within twenty days from the entry of this order. . . This order, with precision and exactness, refers to the deficiency judgment, giving its date of entry and the amount, thereof. It does not refer to the original foreclosure judgment by which the personal liability of the defendant was-established. It would be only by a very far-fetched implication indeed that this order could be held to vacate and set-aside any part of the original judgment. It is important that the stability and integrity of court decrees be upheld, and it seems to us that it would be doing violence to very plain and unambiguous language to hold that the words here used, in fact or by any reasonable implication, vacated any judgment or any part of any judgment except that for deficiency rendered May 13, 1905. The situation is somewhat analogous to that presented where a motion is made for a new-trial after the entry of judgment. An order granting such motion would not, ipso facto, vacate the judgment, and the-motion for a new trial should not be entertained unless coupled with a motion to vacate the judgment. Whitney v. Earner, 44 Wis. 563; Bailey v. Costello, 94 Wis. 87, 93, 68 N. W. 663. The judgment appealed from, among other things, adjudges that the plaintiff was not entitled to a deficiency judgment against the defendants Saveland and Foeschi. This provision of the judgment is directly contrary to the adjudication of the court in the foreclosure suit. The order vacating the deficiency judgment was made March 20, 1907. The moving party was conversant with the fact that judgment had been entered against him some time prior thereto. Over a year and a half elapsed after the deficiency judgment was set aside before this action was tried, and judgment therein was not entered until November 5, 1908. It is therefore apparent that no application was made under sec. 2832, Stats. (1898)y [668] 'to set aside any part of tbe foreclosure judgment within one .year after tbe moving party bad notice of sucb judgment and •of bis rights in reference thereto. By the Court. — Tbe judgment of tbe circuit court, is reversed, and tbe cause is remanded with directions to reinstate tbe deficiency judgment, and for further proceedings according to law. .Siebecker, J„, took no part.