Quaw v. Lameraux , 36 Wis. 626 ( 1875 )

Cole, J.

The motion made in this cause was to set aside the judgment of foreclosure, the sale, and the report of sale made by the sheriff, and that the defendants have leave to file and serve an answer therein. This motion was made a,t a term subsequent to that at which the judgment was rendered, and there would therefore seem to be an insuperable difficulty in the way of vacating the judgment, unless the parties brought themselves within the provision of section 38, ch. 125, R. S. That section authorizes the court to relieve a party within one year after notice thereof, from a judgment, order or other proceeding against him through his mistake, inadvertence, surprise or excusable neglect, upon such terms as may seem just. But, except under this statute, the court had no power, at a subsequent term, upon motion, to vacate the judgment for error in law or in fact committed in rendering it or occurring before it was pronounced. This point has been frequently decided by this court, as a reference to the reported cases will show. Edwards v. The City of Janesville, 14 Wis., 28; Spafford v. The City of Janesville, 15 id., 475; The Ætna Ins. Co. v. McCormick, 20 id., 265. This rule of law has its exceptions, however, and does not prevent a court at a subsequent term from setting aside a void judgment; or from vacating a judgment for errors and irregularities not in the judgment itself, and in a matter upon which the mind of the court did not act. The Ætna Ins. Co. v. McCormick, supra.

In this case the defendants laid no foundation for relief from the judgment on the ground of surprise or excusable neglect. Nor is there ground for saying that the judgment was void for want of jurisdiction, as personal service of process was had upon Dora Lamereaux, one of the heirs of the mortgagor, and this was sufficient to sustain the jurisdiction of the court. It is true, there would seem to be fatal errors in the judgment; but they are of a character which could only ' be corrected on appeal. What those errors are, we are not called upon to point out at the present time ; but it is sufficient to say that they afford no ground for setting aside tbe judgment at a subsequent term of tbe court, upon tbe authorities above cited.

But tbe motion to set aside the sale and tbe sheriff’s report of sale, should have been granted. It appears from tbe affidavit of the witness Herman Miller, that he attended the sale, and offered to bid, and was prepared to pay, for the undivided one-half of the south half of lot two —being a portion of the mortgaged premises, — an amount sufficient to satisfy the judgment, but that the sheriff refused to receive the bid. And he states in the same affidavit that he will bid and pay for the same interest, if offered separately, a sum sufficient to satisfy the judgment.

We are unable to see any excuse or justification for this conduct of the sheriff in refusing the bid for the undivided half of the south half of lot two, and proceeding to sell the undivided half of tbe entire lot. He does not deny, in the affidavit which he made and which was used in resisting the motion to set aside the sale, that this offer or bid was made by Miller, or that it was sufficient to satisfy the j udgmeht. And he fails to state any reason for refusing that bid. He was obviously re ■ quired to sell only so much of the mortgaged premises as was sufficient to satisfy the judgment; and when he had raised that amount, his power to sell was exhausted. And there was the most cogent reason why the sheriff should only sell the undivided half of the south half of the lot — if that was sufficient to raise the amount, — instead of selling the undivided half of the entire lot; which was, that by so doing he would protect the interests of Joseph S. Snow, or those claiming under him, in the north half of lot 2. For it appears that the mortgagor and those owning the other moiety of that lot, as early as 1859, had made a partition or division thereof, and that by such partition the south half was set off to the mortgagor. It is true this was after the execution of the mortgage sought to be foreclosed; but the rights of Snow in the north half were entitled to protection. The officer might have fully protected those rights, had he received the bid of Miller above referred to. As it seems to us, his action in the matter was wholly without authority in law, and quite indefensible.

It appears that the purchaser at the foreclosure sale has conveyed a portion of his interest to another party. But this conveyance was made during the pendency of the motion to set the sale aside.

We think that part of the order refusing to set aside the sale and the sheriff’s report of sale and all subsequent proceedings, must be reversed; while that part refusing to vacate the judgment of foreclosure must be affirmed.

By the Court. — It is so ordered.