#### Hart and wife, Respondents, vs. Jos. Schlitz Brewing Company, imp., Appellant.

*February 2*

February 23, *1904.*

*Appeal and error: Respondent’s exceptions, when available: Filing of records: Mortgages: Foreclosure: Judgment, when entered: Modification: Effect.*

1. A respondent may avail himself of his exceptions to findings to sustain the judgment appealed from.

i2. In an action to set aside a foreclosure sale, it appeared that the judgment on default was signed hy the trial court, and the costs taxed and inserted therein January 14, 1896; that the judgment roll with the costs so taxed inserted, was, on that day, handed to the clerk, who retained them in his ofiice until October 25, 1897, at which date the clerk indorsed such judgment as filed, and entered the same of record. *Held,*that the mere improper failure of the clerk to mark the papers as filed on January 14, did not prevent the actual filing at that date from being effectual.

:3. In an action to set aside a foreclosure sale it appeared, among other things, that the judgment on default was entered January 14, 1896; that on October 13, 1897, on the plaintiff’s application, an order was entered reducing the amount of solicitors fees from $100 to $50, so as to conform to the findings ■as originally drawn; that the sale thereunder was had April 8, 1898, and that the mortgagors took no steps to set aside the ¡sale until December 5, 1900. *Held,*that such alteration of the judgment did not make a new judgment, nor extend the time for redeeming from the judgment which had originally been -entered.

Appeal from a judgment of the circuit court for Ashland county: John K. Parish, Circuit Judge.

*Reversed.*

It appears from the record, and is in effect found hy the court, that September 10, 1894, the plaintiffs, *Michael J.*and *Bridget*Hart, executed and delivered to the *Jos. Schlitz Brewing Company*their promissory note for $500, due in one year from that date, with interest at six per cent.; that .at the same time the plaintiffs executed and delivered to that company a mortgage to secure the payment of that note on *554land described belonging to tbe plaintiff *Michael J.,*and at; tbe same time they executed and delivered to tbat company another mortgage to secure tbe payment of tbe same note on. land described belonging to tbe plaintiff *Bridget;*tbat eacb of said mortgages contained a stipulation for tbe payment of' $50 solicitor’s fees in case of tbe foreclosure of tbe mortgage; tbat in November, 1895, tbe brewing company commenced an action for tbe foreclosure of both mortgages against *Michael J.*and *Bridget Hart;*tbat both made default, and neither appeared in tbe action; tbat January 14, 1896, judgment of foreclosure and sale was procured in'tbe court, and' signed by tbe judge thereof, wherein it was adjudged tbat there was due to tbe brewing company, for principal and interest, $540, and costs therein specified, in a bill taxed and. signed by tbe clerk and thereto attached, aggregating $82.58,. and also $100 solicitor’s fees inserted in tbe judgment, making in all $122.58; tbat such signature in tbe judgment roll and papers upon which tbe same was founded, with tbe costs so taxed inserted, was procured by tbe attorney of tbe brewing company January 14, 1896, and banded to tbe clerk off tbe court for entry and record, and tbe judge, at tbe time of signing such judgment, minuted thé rendition thereof in bis minutes; tbat on and before September 14, 1896, said *Michael J.*bad knowledge of tbe entry of said judgment of foreclosure and sale; tbat October 13, 1891, an order was entered in said court reducing tbe amount of solicitor’s fees from $100 to $50, and amending the judgment accordingly, so tbat tbe total amount of tbe judgment, January 14, 1896, was thereby reduced to $612.58; tbat tbe clerk of tbe court retained tbe judgment roll and papers in bis office from January 14, 1896, to October 25, 1891, without indorsing the-same as filed; tbat on said last-mentioned date tbe clerk indorsed said judgment as filed, and entered tbe same of record ; tbat, pursuant to due notice given, all of the property covered by said mortgages was sold in good faith, and with*555out any intent to defraud, in parcels to and bid in by the-brewing company under and upon said judgment, April 8, 1898; that upon sucb sale tbe sheriff reported a deficiency of $381.01, and tbe same was confirmed by tbe court June 3, 1898, and judgment for sucb deficiency was thereupon rendered for tbe amount stated against *Michael J.*and *Bridget Hart,*and in favor of tbe brewing company; that *Michael J.*bad knowledge of sucb sale prior to June 1, 1898; that after be obtained sucb knowledge tbe brewing company in good faith contracted to sell sucb lands to tbe defendant Rock Le Yille for $050; that tbe value of tbe property at tbe time of the foreclosure sale was $/750; that tbe plaintiffs took no steps to set aside said foreclosure sale until December 5, 1900, when they commenced this action to set aside said judgment of foreclosure and sale so far as it affected the separate property of tbe plaintiff *Bridget,*and to set aside tbe sale and tbe order confirming tbe same. The brewing company answered tbe facts set forth above, and, upon trial being bad, tbe court found tbe facts in effect as stated. As conclusions of law tbe court found in effect that tbe plaintiffs were entitled to no relief, except that tbe foreclosure sale of April 8, 1898, was within one year from tbe entry of tbe judgment, and hence premature, and therefore should be set aside. Erom tbe judgment entered thereon accordingly, tbe defendant *Jos. Schlitz Brewing Company*brings this appeal.

Eor tbe appellant there was a brief by *B. Sleight,*attorney, and *Miller^ Noyes & Miller,*of counsel, and oral argument by *Geo. H. Noyes.*

Eor tbe respondents there was a brief by *Lamoreux & Shea,*and oral argument by *W. F. Shea.*

Cassodat, C. J.

Tbe findings of fact are against the-plaintiffs, and in favor of tbe brewing company. Tbe plaintiffs seek to avail themselves of exceptions to certain of sucb findings to sustain tbe judgment — a practice which is per*556missible. Sec. 3070, Stats. 1898, and notes. They claim that it appears from the preponderance of the evidence that the judgment of foreclosure and sale-was not entered January 14, 1896, nor until it was marked as filed by the clerk October 25, 1897. If that were so, then the sale was premature. The mere improper failure of the clerk to mark the judgment and the papers composing the judgment roll as filed did not prevent such filing from being effectual. *Lang v. Menasha P. Co.*119 Wis. 1, 96 N. W. 393, and cases there ■cited. It is conceded that the judgment was signed by the "trial judge January 14, 1896, and contained the amount of -costs as taxed by the clerk at $82.58. There can be no reasonable doubt but that the judgment so signed, and the papers upon which it was based, were all delivered to the clerk ■at or about that time. Thereupon the duties of the clerk as ■to such judgment and judgment roll were prescribed by the ■ statute. Sec. 742, Stats. 1898. The trial court found that the findings in the foreclosure action, as originally drawn, provided for only $50 solicitor’s fees, and that the same was -erased and $100 inserted in place thereof, but that the evi■dence failed to show whether such change was before or after the rendition of the judgment, and therefore held that the ■same was made prior to the rendition of the judgment. Certainly it is not to be presumed that the findings or judgment were corruptly altered, especially as the trial court also found that there was no fraud on the part of the brewing company ■or its attorney or his clerk in the preparation of said judgment, or in the entry or filing thereof, or in anything done by them or either of them in respect to the same. The order of October 13, 1897, reducing the amount of the solicitor’s fees from $100 to $50, was made on the application of the brewing company. If the facts were as contended by the plaintiffs, then such order merely made the judgment conform to the original findings. Did the reduction of the solicitor’s fees in the judgment from $100 to $50, October 13, *5571897, make it a new judgment within the meaning of the-statute? Sec. 3162, Stats. 1898. That section provides that “the judgment shall fix the amount of the mortgage debt then due,” and also any installments to become due. It also prohibits any sale “until the expiration of one year from the-date of such judgment or order of sale.” Id. Another section gives a right to redeem “at any time before the sale.” Sec. 3165, Stats. 1898. The manifest purpose of these sections was to give all parties interested one year from the date of' the judgment or order of sale within which to redeem. *Citizens L. & T. Co. v.*Witte, 119 Wis. 517, 97 N. W. 161. The language of the statute seems to have been departed from in *Andrews v.*Welch, 47 Wis. 132, 135, 136, 2 N. W. 98. That case was criticised in a later case, wherein it was held:

> “If the judgment has been signed and filed with the clerk and the costs have been taxed and inserted therein, it need' not be recorded before the year will begin to run.” *Meehan v. Bloodgett,*86 Wis. 511, 57 N. W. 291.

Since that decision it has been held:

> “The correction of a mere clerical mistake in a judgment of foreclosure does not make a new judgment. The corrected judgment will stand as effective for all purposes as if properly entered in the first instance.” *Bostwick v. Van*Vleck, 106 Wis. 387, 82 N. W. 302. See, also, *Packard v. Kinzie Ave. H. Co.*105 Wis. 323, 81 N. W. 488.

Here the trial court, on the application of the brewing company, reduced the amount of the solicitor’s fees inserted in the judgment to $50, so as to conform to the amount contained in the findings as originally drawn. We must hold that such alteration did not make a new judgment, nor extend. the time for redeeming from the judgment which had thus been entered.

*By the Court.*— The judgment of the circuit court is reversed, and the cause is remanded, with directions to dismiss, the complaint.