Arthur J. Straus Co. v. Weiskopf

Eschweiler, J. Even had the trial court power to then grant the relief prayed for in the petition by the trustee, still we can find no situation here indicating that such denial was an abuse of discretion. No purchaser is named in the petition and no specific amount stated that would be paid. Neither was there any showing why no prior attempt had been made by or on behalf of any óf the creditors of the bankrupt to ¡obtain proper relief either in this action or in the federal court. The trial court was also right on other grounds in denying relief to the petitioner. At the time the application was made in November thefe had then elapsed one term of court as well as the sixty-day period prescribed in sec. 113.10, Stats., so that under any view of the situation the general power of the court over its own judgments had expired. The judgment as entered on July 1st was a final judgment because it left no undetermined or disputed questions for further settlement. The rights of the parties at the expiration of the redemption period were as definitely determined by the judgment of July 1st as they would or could be on [328] September 22d, the expiration of such period. If the defendants then paid the amount adjudged due on the land contract they automatically became thereby entitled to a deed of the property; if there was default in such payment the plaintiff thereby automatically became entitled to its immediate possession and was vested with full ownership. •Being such a final judgment, the power of the trial court on November 2d over the same was limited to the relief permitted under sec. 2832, Stats., providing that at any time within one year after notice of the entry of such judgment a party thereto may be relieved on account of such party’s mistake, inadvertence, surprise, or excusable neglect, and we find no grounds presented for relief under such provision. The mere instituting of the bankruptcy proceeding did not' stay the running of any of the terms of the judgment or extend or affect the period of redemption therein provided. Upon proper application within the period of redemption either the bankrupt or some duly accredited representative of his estate might have applied for. appropriate relief either in the court below or have asked of the federal court wherein the bankruptcy proceedings were pending to have the proceedings in the state court stayed in order that the possible rights of creditors might not be prejudiced. First Sav. B. & T. Co. v. Butler, 282 Fed. 866; 7 Corp. Jur. 205. It is also urged that the court had the power to and should have extended the period of redemption under the provisions of sec. 2831, Stats., authorizing the court to enlarge the time within which proceedings may be taken in any action. We cannot, however, see any ground upon which such claim can be properly asserted. That the plaintiff benefited by having applied on the judgment the proceeds from the sale of the pledged personal property cannot now be relied upon as having the claimed effect of vitiating the judgment of July 1st as a whole on the suggested ground that it was in the nature of relief inconsistent with or contradictory of the main features of the [329] judgment, which was predicated upon an election to foreclose defendants’ title. The rule as to the binding effect of an election of one of the several remedies against a vendee in a land contract upon his default as stated in Kunz v. Whitney, 167 Wis. 446, 167 N. W. 747, relied upon by appellant, is not applicable here for two, reasons: first, because the agreement as to such pledge was not a part of the original land contract upon which the foreclosure action was based, but a separate and distinct one; second, because that part of the judgment was with the tacit if not express consent of the defendants and without objection by any one, when there was full opportunity to interpose such objection at the time of the entry of the judgment. The question cannot now be raised by this trustee, who must trace his right to so object through the bankrupt. The question whether or not the trustee may have relief as to the amount so realized on such sale as an illegal preference or a violation of the bankruptcy law is of course not properly before us in this matter, and we cannot consider appellant’s suggestion that we should here and now pass upon such question. By the Court. — Order affirmed.