Fish v. Collins

HosuNBEKRT, J. Plaintiff claims that the judgment of foreclosure and sale entered September 15, 1890, is barred by sub. (1), sec. 4220, Stats., as follows: “Within twenty years: (1) an action upon a judgment or decree of any court of record of this state or of the United States sitting within this state.” As to this claim it is sufficient to say that advertising the property for sale under the foreclosure judgment is not an action and is therefore not within the terms of sub. (1), sec. 4220. It is further claimed that, because the personal liability of the plaintiff is extinguished, the lien of the mortgage established by the judgment cannot now be enforced. This court has repeatedly held to the contrary. Roach v. Sanborn L. Co. 135 Wis. 354, 115 N. W. 1102, and cases cited. It is suggested that plaintiff is prevented from asserting any further rights under the judgment of foreclosure by the provisions of sec. 2968, Stats., relating to the issuance of executions upon judgments, which reads as follows: “Upon any judgment of a court of record which shall have been perfected under the provisions of section 2894a or any judgment of any other court docketed in any court of record, execution may be issued at any time within five years after the rendition thereof, and when any execution shall have been [460] so.issued and returned unsatisfied in whole or in part alias executions may be issued tbereon at any time thereafter. But if no execution shall have been issued thereon within said five years it shall only be issued thereafter upon leave granted by the court or a judge thereof, when it shall be made satisfactorily to appear by the affidavit of the party, his agent or attorney that the judgment or some part thereof remains unsatisfied and due; but in no case shall an execution be issued or any proceedings had upon any judgment after twenty years from the time of the rendition thereof.” Attention is called particularly to the last clause of the section. It may be said that the issuance of the notice of sale and the sale of the property under the judgment in question is not a proceeding upon the judgment. A further answer is that sec. 2968 has no application to a judgment of foreclosure and sale until the coming in of the report of sale and the rendition of judgment for deficiency thereon. The last clause of sec. 2968 was in the nature of a proviso enacted by ch. 11, Laws 1868, the words of the proviso being as follows: “Provided, that no execution shall issue, nor any action or proceedings be had upon any such judgment after twenty years from the time of the rendition or docketing thereof.” By the revision of 1818, ch. 14 of the Laws of 1866 and ch. 11 of the Laws of 1868 were combined and the words “nor any action” and the word “such” were omitted. The revisers state that the chapters were rewritten but not materially changed, the words “nor any action” being omitted for the reason that the subject was covered by the chapter on limitations. Independent of the history of the statute, we are of the opinion that sec. 2968 is intended to apply only to judgments on which execution may issue. A judgment of foreclosure and sale is not such a judgment. The finding of the trial court that the defendant Gollins was not guilty of laches is sustained by the evidence. It is contended that an examination of ch. HI, Stats., discloses an intention to provide a limitation as to all claims, and that the court should give effect to the legislative policy [461] by so construing tbe statutory law as to create a limitation upon tbe right of tbe defendant Collins to proceed upon tbe judgment of foreclosure and sale. His right to proceed not being within tbe terms of any provision of the statutes, we cannot extend the statute by construction so as to include it. Statutes creating limitations are to be reasonably and fairly construed. Whereatt v. Worth, 108 Wis. 291, 84 N. W. 441. But they should not be extended by construction. Fish v. Jenewein, 75 Wis. 254, 43 N. W. 950, 44 N. W. 515. Therefore we are of the opinion that the judgment of the court below is right. By the Court. — Judgment affirmed.