#### Pereles and another, Executors, Respondents, vs. Leiser, Executor, imp., Appellant.

*October 21*

November *15, 1904.*

*Mortgages: Foreclosure: Judgments: Appeal and error: Limitation on time within which appeal can be taken 'from deficiency judgment: Dismissal of appeal.*

*1.*Under sec. 3039, Stats. 189S, limiting tlie time within which an appeal may he taken from a judgment, an appeal taken February 4, 1904, from a judgment entered November 3, 1900, is too late, and will be dismissed.

2. On foreclosure of a mortgage, the judgment of foreclosure and sale, entered on default November 30, 1900, adjudged the estate 'Of defendant’s testatrix, a married woman, personally liable • for the debt, and contained provision for a judgment for deficiency against her estate. On confirmation of the report of '■sale, such deficiency judgment was entered February 5, 1902. Defendant, as such executor, on February 4, 1904 appealed from such deficiency judgment, and also from that part of the judgment of foreclosure and sale which adjudged the estate of his testatrix personally liable. *Held,*that the judgment of foreclosure and sale, not having been appealed from within the time limited by statute, was conclusive on the executor, and that there was no merit in the appeal from the formal judgment for deficiency.

Appeals from judgments of tbe superior court of Milwaukee county: OeeeN T. Williams, Judge.

*Appeal from one judgment dismissedj from the other affirmed.*

This action was commenced August 24, 1900, by tbe testator of tbe plaintiffs to foreclose a note secured by mortgage ■on tbe real estate described, both executed by Sarab Leiser to Erancisca Strobel, June 1, 1894, for $500, payable three years after tbe date thereof, with interest thereon at 6 per ■cent, from tbe date thereof. Tbe mortgage was recorded June 15, 1894. Sarab Leiser died testate June 16, 1895, her will was admitted to probate July 10, 1895, and tbe defendant *Isidor Leiser*was appointed executor thereof September 14, 1895. , June 30, 1900, in consideration of $547.50 paid, tbe *234said Francisca Strobel assigned said note and mortgage to the-testator of the plaintiffs, Benjamin Franklin Pereles, which assignment was duly recorded July 5, 1900. Notice of *Us-pendens*was filed September 11, 1900. November 3, 1900,. judgment of foreclosure and sale was entered in this action by default. Said judgment contained the following provision, to wit:

“It is further ordered, adjudged, and decreed that if the-proceeds of such sale shall be insufficient to pay the amount adjudged to the plaintiff, aforesaid, with interest and costs, the said sheriff specify the amount of such deficiency in his-report of sale, and, upon filing said report and its confirmation, that judgment be entered and docketed in favor of the plaintiff and against the estate of Sarah Leiser, which is liable for the amount of such deficiency and interest from the date of sale, and that the plaintiff have execution therein to enforce payment of the same.”

December 30, 1901, upon due notice, the sheriff sold the mortgaged premises to one *Herman Pereles*for $200. January 9, 1902, the sheriffs report of such sale was filed, from which it appeared that there was a deficiency on said sale of $596.43. February 1, 1902, the defendant *Isidor*Leiser, as-such executor of the will of Sarah Leiser, deceased, filed his petition, and therein offered to prove the allegations alleged, praying that the plaintiff be permitted to take no further or other judgment, and that no judgment for deficiency be entered against such estate of Sarah Leiser, deceased. February 5, 1902, and upon such petition and the records, files,, and proceedings therein, and upon motion of the plaintiff’s attorney, it was “ordered and adjudged that the said sheriff’s report and sale be, and the same are hereby, confirmed, for the reason that tile executor has no right to contest the final foreclosure judgment entered by default over a year ago, and because said judgment is a final judgment; and it is further ordered and adjudged that the plaintiff herein recover of *Isidor*Leiser, as executor of the last will and testament of *235Sarab Leiser, deceased, the sum of $596.43, being the deficiency specified in said report of sale — said sum to be chargeable upon and collected out of the estate of said Sarah Leiser,. deceased' — and that the clerk of this court enter judgment accordingly, and certify the same to the county court as a claim: against said estate ;” and such judgment was duly docketed February' 5, 1902. February 4, 1904, the defendant *Isidor*Leiser, as such executor, appealed to this court from that part of the judgment of November 3, 1900, quoted above, and also* from the whole of the order and judgment so rendered February 5, 1902, and quoted above.

In pursuance of the stipulation of the parties herein made1 August 26, 1904, it was thereupon ordered by this court that *Max*and *Herman Pereles*be substituted as plaintiffs and respondents in place of Benjamin Franklin Pereles, who died' testate June 22, 1902, and whose will was admitted to probate June 28, 1902, and September 5, 1902, *Max*and *Herman Pereles*were duly appointed executors of such will, and have since acted as such, and that this appeal be revived in their names.

*H. L.*Platon, for the appellant.

For the respondents the cause was submitted on the brief of" W. *0. Thomas.*

Oassoday, O. J.

Counsel for the plaintiff moves to dismiss the appeal from that part of the judgment of foreclosure and sale entered November 3, 1900, and quoted above, for the reason that it was not taken within “two years from the date1 of the entry of such judgment or order,” as prescribed by the statute (sec. 3039, Stats. 1898). As appears from the foregoing statement, such appeal was not taken until more than three years after “the entry of such judgment or order,” and' hence we perceive no reason why that appeal should not be dismissed.

The question recurs whether the matters determined in the *236judgment of November 3, 1900, are conclusive upon tbe parties, or are reviewable on tbe appeal from tbe judgment of deficiency entered February 5, 1902. Tbe original judgment determined tbe amount due to tbe plaintiff therein, and, in tbe portion quoted in tbe foregoing statement, ordered and adjudged “that judgment be entered and docketed in favor ■of tbe plaintiff, and against tbe estate of Sarab Leiser, wliicb is liable” therefor. Upon tbe appeal in tbe other case between tbe same parties, such a judgment was held to be erroneous, but not void. *Pereles v.*Leiser, 119 Wis. 347, 96 N. W. 799. •Counsel contends, however, that it was not a judgment for deficiency, and-that no such judgment could be taken until 'the confirmation of tbe sheriff’s report of sale, or afterwards. Tbe statutes regulating tbe entry of such judgments provide:

> “In actions for tbe foreclosure of mortgages upon real estate, if tbe plaintiff recover, tbe court shall render judgment of foreclosure and sale, as hereinafter provided.” Sec. 3154, 'Stats. 1898.

And then, after stating bow tbe proceeds of tbe sale should "be applied (section 3155), tbe statute further provides:

> “In all such actions tbe plaintiff may in bis complaint unite with bis claim for a foreclosure and sale a demand for judgment for any deficiency which may remain due to tbe plaintiff after sale of tbe mortgaged premises against every party who may be personally liable for tbe debt secured by tbe mort-gage; . . . and judgment of foreclosure and sale, and also for any such deficiency remaining after applying tbe proceeds of sale to tbe amount adjudged to be due for principal, interest and cost, may in such case be rendered. Such judgment for deficiency shall be ordered in tbe original judgment, and separately rendered ■ against tbe party liable on or after tbe coming in and confirmation of tbe report of sale, and be •docketed and enforced as in other cases.” Sec. 3156, Stats. 1898.

Another section of tbe statute provides, so far as it applies to this case:

> *237“The judgment shall fix the amount of the mortgage debt then due . . . and shall adjudge that the mortgaged, premises be sold for the payment of the amount adjudged to. be due, . . . and, when demanded in'the complaint, an: order directing that judgment be rendered for any deficiency against the parties personally liable therefor.” Sec. 3162,. Stats. 1898.

In *Gaynor v.*Blewett, 86 Wis. 399, 100, 57 N. W. 44, Mr. Justice C>R,toN, construing these sections, and speaking for the court, said:

> “The statute requires that judgment for the deficiency shall be ordered in the original judgment. The order is a necessary part of the judgment of foreclosure, and it is a-final adjudication of the defendant’s common-law liability, for the debt. The formal judgment is rendered and docketed' as of course on the coming in and confirmation of the report of sale showing the amount of the deficiency.”

It was there held that the part of the judgment for such, deficiency was appealable. That was followed in *Kane v. Williams,*99 Wis. 65, 72, 74 N. W. 570, where it was claimed that such part of the judgment for deficiency was-“a mere order,” and not appealable; but the court held that the point was not well taken, and that it was “an integral part of the judgment,” and fixed the rights of the parties, and' hence was appealable. That was followed in *Richards v. Land & River Imp. Co.*99 Wis. 625, 629, 75 N. W. 401. See, also, *Duecker v.*Goeres, 104 Wis. 29, 38, 80 N. W. 91.

We must hold that the original judgment to the effect that the estate of Sarah Leiser was liable for such deficiency, not' having been appealed from within the time limited by the' statute, is conclusive upon the executor. It necessarily follows that there is no merit in the appeal from the formal judgment for deficiency, entered February 5, 1902.

*By the Court.*— The appeal from the part of the original judgment entered November 3, 1900,.of the superior court of Milwaukee county, is dismissed. The formal judgment; for deficiency entered February 5, 1902, is affirmed.