Farmers' & Millers' Bank of Milwaukee v. Eldred , 20 Wis. 196 ( 1865 )

Tbe following opinion was filed at tbe June term, 1865.

Cole, J.

Tbe affidavit for publication is sufficient. It states ' that tbe action is brought to foreclose a mortgage, and that tbe defendants (naming them) in respect to whom s'ervice is to be made, “ are proper parties to said action, and have or claim a lien or interest in tbe aforesaid property by virtue of judgments which are subsequent to tbe mortgage set forth in tbe com- ■ plaint; that tbe relief demanded by tbe said complaint against them consists in wholly excluding them, tbe defendants, from any interest or lien in tbe aforesaid property ; that said defendants cannot, after due diligence, be found within this state.” This shows that tbe action is brought to foreclose a mortgage, and that tbe defendants in respect to' whom service by publication was sought to be made were subsequent incumbrancers.

Tbe proof of filing lis pendens was sufficient. Tbe register certified that be bad no official seal. It will be seen that this certificate was made before tbe passage of chap. 316, Laws of 1864 ; so that in no possible view coidd that law apply. We are unable to perceive bow tbe rights of tbe mortgagor could be prejudiced because tbe railroad company was not brought in as a party. Tbe railroad company took steps to condemn tbe land subsequently to tbe commencement of tbe suit, and to tbe filing of notice of Us pendens. It may concern tbe railroad company, perhaps, to know to whom it must pay its money. But we do not perceive that tbe rights of tbe mortgagor are prejudiced because tbe company is not before tbe court to have that mat, ter determined.

By the Court. — The judgment of tbe circuit court is affirmed.

A motion for a rehearing was denied at tbe January term, 1866.