Tanguay v. Felthousen
Wisconsin Supreme Court
APPEAL from the Circuit Court for Wood County. The plaintiff, being the indorsee and holder of a promissory note given by one Powers to Margaret J. Worden, and the as-signee of a mortgage on certain real estate, executed by Powers and wife to Mrs. Worden to secure the payment of such note, brought his action against Powers and his wife, and a subsequent incumbrancer, to foreclose such mortgage.
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APPEAL from the Circuit Court for Wood County. The plaintiff, being the indorsee and holder of a promissory note given by one Powers to Margaret J. Worden, and the as-signee of a mortgage on certain real estate, executed by Powers and wife to Mrs. Worden to secure the payment of such note, brought his action against Powers and his wife, and a subsequent incumbrancer, to foreclose such mortgage. Judgment of foreclosure was rendered in that action, and the mortgaged premises sold pursuant thereto. The plaintiff was the purchaser at the sale, and there has been no redemption. A few days before…
1Opinion of the CourtEton, J.
The action is in equity to foreclose a mortgage; the judgment is purely a judgment at law for the recovery of a sum of money. The character of the action may be thus changed by consent; but if so changed, the pleadings should be amended to correspond with the altered purpose of the parties. Lawe v. Hyde, 39 Wis., 345.
This record fails to show that the appellant has ever consented that a personal judgment might be rendered against him; and hence the judgment cannot be sustained, unless the plaintiff may, without the consent of the appellant, transform the equitable into a legal action.…
2Cases cited4 opinions
- Lawe v. HydeWisconsin Supreme Court · 1876
- Wilcox v. BatesWisconsin Supreme Court · 1870
- Cleveland v. SouthardWisconsin Supreme Court · 1870
- American Button-Hole, Overseaming & Sewing Machine Co. v. GurneeWisconsin Supreme Court · 1878
3Cited by5 opinions
- Michigan Savings & Loan Ass'n v. AtteberyCourt of Appeals of Texas · 1897
- Bennett v. KeehnWisconsin Supreme Court · 1883
- Arwold v. RandallWisconsin Supreme Court · 1904
- Klauser v. ReevesWisconsin Supreme Court · 1937
- Redhead v. Skidmore Land Co.Wisconsin Supreme Court · 1927