Fitch v. Huntington

The following opinion was filed April 5, 1905:

Winslow, J,

The most important question in this case is as to the effect of the Iowa judgment. The appellant’s claim is that this judgment is res judicata between all the parties to this action, and forever determines not only the fact that the mortgage is not a lien upon the Iowa land, but that the note has been discharged and all personal liability thereon terminated. It is freely conceded that the effect of the judgment is to relieve the land of the lien. This land was within the jurisdiction of the Iowa court. The action to declare it free from the apparent lien was an action in rem. It was apparently conducted as provided by the laws of the state of Iowa. Substituted service as provided by those laws was made upon the respondent. Upon very familiar principles he cannot now question in any court the conclusiveness of that decree so far as the title to that property is concerned. But upon principles equally familiar, that court, upon merely substituted service, could not pronounce a judgment affecting the personal rights of the respondent, or deprive him of valid contract rights against third persons which were purely personal in their nature, and not within the jurisdiction of the *208 court. It could determine, on substituted service, whether the title to land within its jurisdiction was clouded by a mortgage, but it could not determine that personal liability upon a promissory note held by a person in Wisconsin (neither note nor person being within its jurisdiction) had ceased.. There are two distinct things in every note and mortgage: there is the personal obligation created by the note, and there is the lien upon the land created by the mortgage. Thorp v. Mindeman, 123 Wis. 149 , 101 N. W. 417 . The lien may well be said to be in Iowa because the land is in Iowa, and the Iowa court has jurisdiction to deal with the land and the lien thereon and determine the condition of the title thereto; and in so doing it may, if the law so provide, give no further notice to interested parties outside the state than substituted service of process, but it cannot enter a judgment wiping out the purely personal liability upon the note. In other words, and as substantially said in Moyer v. Koontz, 103 Wis. 22 , 79 N. W. 50 , it may adjudicate with reference to property within the state, or with reference to the status of one of its own citizens, but it has no jurisdiction for mere purposes of personal adjudication against a nonresident upon whom substituted service alone was made. This is decisive of this question. The Iowa court held that the note had been discharged, but this holding was only effective so far as it formed a basis for removing the lien. It had no effect upon the personal liability or the note, because the man who held title to that personal liability was not before the court except by substituted service, and his rights to enforce that personal liability could not be affected. The trial court was therefore entirely right upon this question.

As appears by the statement of facts, the appellant, in the circuit court, admitted that the executor’s final account was correctly stated except as to three items. One of these items refers to the note and mortgage, and has been considered. Tbe remaining two items are: (1) $100 paid Miss Sherbon *209 for expenses attending as a witness from California npon the controversy raised by the petition of Elizabeth Eitch; and (2) hill of Bums & Ellis for attorney’s services and expenses, $321.25. No testimony of any kind was given with reference to these items npon the trial, bnt the judgment of the county court allowing the account including these items was affirmed. Specific objections to the' allowance of these items had been made in the county court, as required by County Court Rule XV, sec. 4. The.trial in circuit court is a trial de novoj and not a mere review of errors. Sec. 4034, Stats. 1898. Sec. 6 of the last-mentioned rule provides that even in case of no contest a final account shall not be allowed of course by the county court, but the court shall be satisfied of its correctness before allowing the same. A fortiori must this be the case when specific objection is made. There may, per--haps, be items in such an account so entirely within the official knowledge of the county judge, from the records of tho estate in his custody, that formal introduction of evidence-would be unnecessary in their support; but, as to the two items in question here, we think there can be no doubt that., evidence should have been introduced by the executor to show their correctness before they could be properly allowed.

We find it necessary, therefore, to reverse that part of the-judgment which affirms the judgment of the county court as; to these two items. As there was evidently a misapprehension in the trial court as to where the burden of proof rested on these items, we shall not order the entry of judgment, but allow further proof to be taken; That part of the judgment assigning one eighth of the real estate to Sarah Sherbon absolutely, instead of for life, will also be reversed, and the proper judgment directed preserving the rights of the re-maindermen, though this point was not raised in the trial court.

By the Gourt. — So much of the judgment which affirms the allowance of the items of $100 paid to Sarah Sherbon, and *210 ■$321.25 paid to Burns & Ellis, and the assignment of one eighth of the real estate absolutely to Sarah Sherbon, is reversed; the remainder of the judgment is affirmed, and the cause is remanded with directions to take testimony as to the correctness of the said items, and for further proceedings and judgment in accordance with law and this opinion. No costs are to be taxed in favor of either party, except that the fees of the clerk of this court are to be taxed against and paid by the respondent.

A motion for a rehearing was denied June 23, 1905.