Tormey v. Gerhart

Cole, J.

The clause in the judgment which is appealed from is erroneous, within the decisions in Baird v. McConkey, 20 Wis., 298 , and Burdick v. Burdick, id., 349 . It is clearly a judgment for a deficiency, according to these decisions, and cannot he regarded as a direction to the effect that, upon confirmation of the report of sale, an order might he entered that the makers of the notes pay the deficiency, and for an execution, etc. Such a clause or direction in a final judgment of foreclosure might he proper enough; it certainly would not he contrary to the rule laid down in the above adjudications. ‘ But this is a judgment for the deficiency; and notwithstanding the ingenious argument of the counsel for the plaintiff, who contends for a different construction, the law of 1862 (ch. 243) appears clearly to provide that the court shall not enter an order for the payment of the deficiency until the confirmation of the report of sale. We use the word “order” advisedly, though the statute makes use of the word “judgment.” Under the code, however, there is properly speaking hut one judgment in a cause; in other words, the only judgment authorized is one that finally disposes of and determines the rights of the parties. This is a judgment according to the definition of the code. Sellers v. The Union Lumberwig Co., 36 Wis., 398 ; Singer v. Heller, 40 id., 544 . The word “judgment,” in the law of 1862, is not, therefore, accurately used with reference to the phraseology of the code. That term can only he applied to the judgment of foreclosure, which finally disposes of the cause upon its merits, and settles the rights of the parties to the litigation. On the confirmation of the report of sale, the court can enter an order against the parties personally liable for the amount of the de *58 ficiency; and this, under. the classification of the appeal statute, would be a final order in an action after judgment.

There has been some diversity of judicial opinion as to what was the final decree in an action of foreclosure. Mr. Justice Story, in Whiting et al. v. The Bank of the United States, 13 Pet., 6 -15, thus states the question: “Whether the decree of foreclosure and sale is to be considered as the final decree in the sense of a court of equity, and the proceedings on that decree a mere mode of enforcing the rights of the creditor and for the benefit of the debtor; or whether the decree is to be deemed final only after the return and confirmation of the sale by a decretal order of the court. We are of opinion that the former is the true view of the matter.” The Pahnyra, 10 Wheat., 502 . Under the code, the judgment of foreclosure and sale finally disposes of the controversy on the merits, and is the only judgment in the cause. Any direction of the court in a proceeding subsequent to the judgment, and founded upon it, is denominated an order. Sec. 29, ch. 140, Tay. Stats.

That part of the judgment appealed from must be reversed, and the cause must be remanded for the entry of the proper judgment of foreclosure.

By the Oourt. — -So ordered.

On a motion for a rehearing, respondent’s counsel argued that under the decision here made no “judgment” for a deficiency can be rendered at all, and the deficiency cannot become a lien upon the debtor’s real estate, since it is upon the docketing of a judgment, and not of an order, that the statute (Tay. Stats., 1506, § 44) gives such a lien. A mere judgment of foreclosure does not adjudge that the debtor pay the amount due upon the note and mortgage. It only determines the amount due, and adjudges that the mortgaged premises be sold to pay it. Tay. Stats., 1699, § 1. If it be held to be a judgment for the amount due, such as can be docketed and *59 become a lien upon tbe debtor’s real property generally, then plaintiff has already all that he can have, and a subsequent order for its payment is superfluous. Certainly the law of 1862 intends that the direction given by the court for the payment of the deficiency shall have all the characteristics and effect of a judgment, which it cannot have unless it is made &f)art of the judgment.

The motion for a rehearing was denied.