W. H. Miller Co. v. Keefe

Petition for revival. This action was begun by service of a summons and complaint upon Fred W. Plath on September 11, 1933; judgment of foreclosure and sale was entered on May 19, 1934; the defendant Plath died on October 8, 1934; on the 16th day of October, 1934, an application was made to the county court of Racine county to admit the last will and testament of Fred W. Plath to probate; the application was duly granted and after proceedings duly had letters testamentary were granted to the First National Bank — Trust Company of Racine, as executor of the last will of Fred W. Plath, on the 16th day of October, 1934.

Upon due notice an order was entered in the county court limiting the time for creditors to file claims against the estate of Fred W. Plath to the 20th day of February, 1935. Due notice of said limitation of time to file claims was given pursuant to an order of the county court of Racine county, Wisconsin, as required by law. No claim of any kind against the estate of the deceased was filed by the plaintiff or by any of the bondholders whom the plaintiff represented. Time for filing has long since expired.

On July 13, 1939, plaintiff filed its petition to revive the action and concurrently therewith made an application to fix a time and place of sale of the mortgaged premises. On the 27th day of September, 1939, the lands described in the foreclosure action were sold by the sheriff of Racine county for the sum of $3,100, subject to unpaid taxes. The total judgment of foreclosure was for $15,534.86. The reported deficiency was $12,434.86. It appears from the record that all of the obligations secured by the foreclosed mortgage were due. On January 13, 1940, the court entered an order denying plaintiff's petition for reviver, from which order plaintiff appeals. The questions for decision are as follows: (1) Did the failure of the plaintiff to file a claim for deficiency in the county court of Racine county against the estate of Fred W. Plath deprive the plaintiff of a right to a deficiency judgment against the executor? (2) Under the facts of this case, Was the court warranted in denying the motion for reviver on account of the laches of the plaintiff and on account of the fact that twenty per cent of the estate had been distributed by order of the county court?

The plaintiff relies upon the case of Johnson v. Landerud (1932), 209 Wis. 672, 245 N.W. 862. In that case one Landerud guaranteed payment of a note secured by a mortgage on real estate. He was made a party to an action foreclosing a mortgage which proceeded to judgment prior to his death. The judgment directed that if the amount was not satisfied by the sale of the property a judgment for deficiency should be entered against Landerud for the amount thereof. Before sale Landerud died. The plaintiff moved to revive the action against the executor under sec. 269.23, Stats. The motion was granted. Thereafter the real estate was sold for less than the mortgage debt and a judgment for deficiency was entered against the executor. The executor appealed, contending that the judgment of foreclosure was a final judgment and that an action cannot be pending so as to be the subject of revival after a final judgment has been entered. The court held that while the judgment was final in some sense, the action was still pending in the sense that proceedings were yet to be taken. It was held that a judgment of foreclosure is not final and may be revived against the person personally liable for the obligation for the purpose of completing the proceedings yet to be taken.

Here it is the claim of the respondent that any personal liability which survived and constituted a claim against Plath was extinguished by reason of the failure of the plaintiff to file its claim in the county court having jurisdiction of the estate of Plath. This contention raises for decision the question whether the failure to file a claim against the estate of Plath extinguished the liability under the provisions of the nonclaim statute. Sec. 313.08, Stats., provides:

"Every claim against a decedent, proper to be filed in probate proceedings in county court, which shall not, after notice given as required by sections 313.03 and 313.04, be filed within the time limited for that purpose, shall forever be barred."

This contention must be decided in favor of the respondent on the authority of Pereles v. Leiser (1903), 119 Wis. 347,96 N.W. 799, and Schmidt v. Grenzow (1916), 162 Wis. 301,156 N.W. 143.

The case of Pereles v. Leiser (1909), 138 Wis. 401,120 N.W. 274, is distinguished from this case by reason of the fact that in that case a judgment had been rendered against the executor and the time of appeal therefrom had expired. The implication is that the judgment was erroneously rendered but having been rendered it could be collected out of the estate. The whole matter of the effect of nonclaim statutes as applied to a real-estate mortgage or a mortgage debt is dealt with in a note, 78 A.L.R. 1126.

In this case the trial court correctly held that the claim against the general assets was barred by reason of the failure of the plaintiff to file it within the time limited by law.

In Schmidt v. Grenzow, supra, it is held that even though the debt is not due at the time of administration, it is not a contingent claim within the meaning of sec. 313.22, Stats., relating to the filing of contingent claims.

By the Court. — The order appealed from is affirmed.