Riemer v. Schlitz , 49 Wis. 273 ( 1880 )

Oetow, J.

The plaintiff’s claim to the property in dispute consisted of a chattel mortgage given by one Haas to one Herbst, and assigned by ITerbst to tbe plaintiff, and of bis right to this mortgage security by subrogation, be having paid, as surety for Haas in a suit against Herbst to enjoin tbe foreclosure of said mortgage, tbe moneys secured thereby to Herbst. Tbe assignment of the note and mortgage was admitted by stipulation of the parties on tbe trial.

The plaintiff’s right of subrogation in such a case is too well settled by this court to require references to authorities in other states. Selleck v. Phelps, 11 Wis., 380; Greenleaf v. Ludington, 15 Wis., 558.

The plaintiff’ distinctly swears that he made demand of the property before the suit was brought.

This disposes of all of the questions raised on the argument, except the effect of the judgment in favor of Herbst against Haas, the mortgagor, for the amount of the note and. interest secured by the mortgage, and the costs in the case of Haas v. Herbst, brought to enjoin the foreclosure of the mortgage. This judgment, rendered as it was, in such a case, in favor of the defendant and against the plaintiff, can have no other effect than a determination of the amount of the mortgage moneys to be paid on redemption of the mortgage. And for this purpose, and treating the defense in that action as a proceeding to foreclose the mortgage against the plaintiff, the judgment determining the amount of the mortgage moneys due was very proper, if not necessary, and the costs in such case, which are made a part of the judgment, are a lien upon the mortgaged property', as the costs and expenses of foreclosure would be in any other form or method of foreclosure.

There appears to be no error in the record, and the verdict was warranted by the evidence.

By the Court. — ’The judgment of the circuit court is affirmed, with-costs.