#### Witter, Respondent, vs. Neeves and another, Appellants.

*December 22, 1890*

*January 13, 1891.*

*Mortgages: Foreclosure: Order directing judgment for deficiency:*Bes adjudicata: *Separate action on note.*

A judgment of foreclosure which embraces an order directing judgment for any deficiency, is a bar to an action upon the note secured • by the mortgage.

APPEAL from the Circuit Court for *Brown*County.

The case is sufficiently stated in the opinion.

Eor the appellants there was a brief by *G. W. Briggs,*attorney, and *Stark (& Sutherland,*of counsel, and oral argument by *Joshua Stark.*

Eor the respondent there was a brief by *Geo. L. Williams,*attorney, and *Gardner <& Gaynor,*of counsel, and oral argument by *Mr. Williams*and *Mr. Geo. B. Gardner.*

They cited 2 Jones, Mortg. secs. 1215,1223; 4 Kent’s Comm. 183, 184, and cases cited; *Lansing v. Goelet,*9 Cow. 354; *Hughes v. Edwa/rds,*9 Wheat. 489; *Gilman v. III. <& Miss. Tel. Oo.*91 U. S. 603; *Draper v. Mann,*117 Mass. 439; *Ely v. Ely,*6 Gray, 439; *Morris v. Branohaud,*52 Wis. 190; secs. 76-81, ch. 84, R. S. 1849; secs. 3154, 3156, R. S. 1878; *Stihoell v. Kellogg,*14 Wis. 465; *Bonesteel v. Bonesteel,*28 id. 245; *Bliss v. Weil,*14 id. 35.

*548OetoN, J.

The respondent commenced an action to foreclose tbe mortgage given to secure a note of $10,000 against tbe appellants in August, 1889, and obtained tbe usual judgment therein in January, 1890. In October, 1889, tbe respondent commenced an action at law against tbe appellants on said note, and they pleaded tbe foreclosure judgment in bar. Tbe court found that tbe judgment of foreclosure was not a bar to tbis action, and rendered judgment in tbe action on tbe note.

On tbis appeal tbe only question is whether the plea ought to have been sustained. We are compelled to answer' that question in tbe affirmative, and bold that tbe foreclosure judgment is a bar to tbis action. Tbe question is not whether, pending tbe foreclosure action in which no other relief or remedy is asked than tbe foreclosure of tbe mortgage, an action at law may be brought on tbe obligation or debt secured by tbe mortgage. It is clear enough in common reason and by tbe authorities cited by tbe learned counsel of tbe respondent that in such a case tbe action at law may be brought before, at tbe same time, or after tbe foreclosure action. Such actions would not be inconsistent with each other. Tbe causes of action and tbe remedies are not tbe same. In tbe foreclosure action tbe respondent accepted tbe advantages of tbe statute (sec. 8156, R. S.), and in bis complaint *united*with bis claim for a foreclosure and sale a demand for judgment for any deficiency which may remain due to him after sale of tbe mortgaged premises. Tbis makes tbe remedy in tbe foreclosure action even broader, fuller, and more complete than in tbe action at law. All tbe remedy be can possibly have in tbe action at law be can have in tbe foreclosure action. It is literally uniting in tbe same action tbe equitable and tbe legal cause of action. While tbe respondent .was pursuing bis legal remedy on tbe note in tbe foreclosure action, be brought tbis action at law to obtain tbe same relief. He *549need not bave united Ms demand for a judgment for any deficiency, and then he could have pursued his legal remedy in another action; but he has done so, and must take the consequences. This question depends upon general principles well known, and our own statute and decisions. ¥e can obtain no aid from decisions under a different statute of foreclosure.

■ The plea is a former recovery, and, to obtain, there must be a final judgment or order determining the rights of the parties in the action of foreclosure in respect to the *note*as a separate cause of action. “ A judgment is the final determination by a court of justice, of the rights of the parties in the action.” Sec. 2882, R. S.; *Blaikie v. Griswold,*10 Wis. 293. “ The judgment, decree, sentence, or *order*of a court having jurisdiction is conclusive.” *Jackson v. Astor,*1 Pin. 137. The statute seems to be plain in respect to the nature and effect of the judgment for the deficiency in the foreclosure action. Sec. 3156, B. S., provides — (1) that a judgment for the deficiency may be demanded in the complaint; (2) “such judgment shall be ordered in the original judgment; ” (3) “ it shall be rendered against the party liable on or after the coming in and confirmation of the report of sale, and be docketed and enforced as in other cases.” Sec. 3162 provides: (1) “ The judgment shall fix the amount of the mortgage debt then due; ” (2) “ and shall *adjudge*that the mortgaged premises be sold,” “ and an order directing that judgment be rendered for any such deficiency.” The meaning of this statute is perfectly clear. The court makes a full and final adjudication of everything, even to the order for the entry of the judgment for the deficiency by the clerk on confirmation of the report of sale. The court has nothing further to do than the confirmation of the report of sale. It is a final determination of the court of the rights of the pai-ties. The entry of the judgment for deficiency, and docketing it, is ministerial *550and clerical, *fro forma,*and as a matter of course. The judgment is “as in other cases,”' — that is, in other cases .at law. This is the construction of the statute in *Welp v. Gunther,*48 Wis. 543. This order for judgment, so adjudicated by the court, is analogous to the judgment of strict foreclosure, which provides for the issuing of a writ of assistance in case the defendant refuses to surrender the premises within a reasonable time. The writ issues as of course, on such refusal, and the court acts no further than the order for such writ on such a contingency in the judgment. *Diggle v. Boulden,*48 Wis. 477. If .the order for judgment so to be rendered is a *final*determination of the court, it is as much *res ad/judicata*as a formal judgment would be.

In *Ketchum v. Breed,*54 Wis. 131, it is held that the defendant’s liability for any deficiency upon a foreclosure sale having been put in issue by the conrplaint and answer in the foreclosure suit, and determined against him by the judgment, he cannot have *that question retried in (¡mother action.*The chief justice says in the opinion: “ That adjudication is conclusive and binding upon him. He cannot in this manner *retry*the question whether he was liable to pay any deficiency arising on a sale of the mortgaged premises ■or not. The matter is *res adfiadicata.”*The defendant sought to enjoin the judgment for deficiency. It is just the same in principle as if the plaintiff had brought another action for such deficiency. This case seems to be in point. In *Palmeter v. Carey,*63 Wis. 426, it became necessary to construe the statute as to the effect of the adjudication of the defendant’s liability for the deficiency. It seems to have been contended by the defendant that his liability ought to be determined in an action at law. Mr. Justice LyoN says in the opinion: “ The statute is purely remedial. Its purpose is to avoid *circuity of action*by settling in the foreclosure suit afi the lights of the parties thereto, *thus avoiding the necessity of a/nother suit,”*etc. There is no *551way of avoiding the conclusion that this adjudication and order, in and a part of the judgment of foreclosure, of the deficiency, is a final determination of that question, and has tbe effect of a judgment within the definition of the statute above cited. In the original judgment the court *adjudges*the order, which makes it a part of the judgment. “ A judgment in a real or personal action, unreversed, is a *perpetual bar,*and may be pleaded to any *new action*of the same or like nature for the same cause.” Bac. Abr. “ Pleas ; ” *Ferrer’s Case,*6 Coke, 7. The judgment of foreclosure is a bar to this action.

*By the*Court.— The judgment is reversed, and the cause remanded with direction to dismiss the .complaint.