Berry v. Doty , 5 Wis. 605 ( 1856 )

By the Court,

’ Smith,’ J,

This' cáse has once before ’been presented to this court’ for eorisi'defátióh,’and is reported'in the 4th volume of Wisconsin Reports, page 375. It was held on that occasion, that the 86th section of chapter 84 of the Revised Statutes, having relation to non-resident defendants, applied to foreclosure suits as well as to other causes ’in chancery. 'It was also’held, that by that section of the statute a non-resident defendant had thé right, withih the tirhe thereby limited,'to’appear and answer, and become entitled to such proceedings in the cause'touching his rightk'arid- equities,’ 'as’tkóugh nó decíéé had béeh--fendered.

The defendant Nelson, in this case, was a non-resident; arid: after a decree of foreclosure and sale had been pronounced, and a sale had taken place of the mortgaged premises, he appeared in due season according to the provisions of said 36th section, and filed his ’petition .to set aside the proceedings as to him, and that he be let in to answer. That petition was denied by the Circuit Court, from which order he appealed to this court, and at tbe December term, A. D. 1855, tbe order of tbe Circuit Court was reversed, and tbe cause was remanded for further proceedings.

It appears that between the time of tbe decision of tbe appeal and tbe time when the motion of Nelson to be let in to answer, &c., was renewed in tbe Circuit Court, tbe legislature passed tbe following act, amendatory of section 36 of chapter 84.

“ Section 36 of chapter 84 of tbe Revised Statutes is amended hereby, by adding to said section tbe following proviso, to wit: Provided that this section thirty-six shall not be so construed as in any manner to affect tbe validity of any sale made pursuant to any decree of tbe court before tbe filing of tbe petition or bill by such absent defendant, his heirs, devisees, executors, administrators or assigns.”

It was in view of this amendatory statute, doubtless, that tbe Circuit Court denied tbe prayer of tbe appellant’s petition when last renewed therein. In this, however, we think that court erred. Tbe rights of tbe appellant bad been fixed, as they were defined under tbe Revised Statutes, by tbe filing of bis petition, and in all other respects complying with tbe requirements of tbe thirty-sixth section before mentioned; and most assuredly they were determined by tbe consideration and judgment of this court, at tbe former term, and before tbe amendatory act of the legislature was passed. That amendatory act, therefore, could not operate to impair or defeat rights which bad become judicially established under tbe law as it at tbe time stood. They were res adjudicate., and not subject to legislative repeal.

It is unnecessary to comment further upon this case, referring only again, in conclusion, to tbe case of Berry vs. Nelson (4 Wis. 375).

Tbe judgment of tbe court below is reversed, and tbe cause remanded.