#### Walton vs. Goodnow, impleaded, &c.

A demurrer to a complaint in a foreclosure suit, under the Rev. Stat. of 1858, on the ground that it demanded a foreclosure of the mortgage, and a personal judgment against the mortgagor for any deficiency which might he found due, was not *frivolous.*

Whether, under that statute, the plaintiff can have, in the same action, a judgment for the foreclosure of a mortgage and a personal judgment against the mortgagor for any deficiency in the proceeds of the foreclosure sale, *quiare.*

APPEAL from tbe Circuit Court for *Milwaukee*County.

Tbe complaint in this case asked for a foreclosure and sale of mortgaged premises, and for a judgment against tbe mortgagors for any deficiency which might be found due. A demurrer to tbe complaint was adjudged in tbe circuit court to be frivolous.

*Jas. G.*Jenhins, for appellant,

in support of tbe demurrer, cited 3 Johns. Ch., 330 ; 5 Cow., 380; 8 Paige, 480. 2. Under tbe Code, tbe causes of action that can be united in tbe same complaint *must affect all the parties to the action*(R. S., chap. 125, sec. 30), while tbe cause of action on tbe bond only affects tbe obligors and no other party to tbe action. 3. In an action upon tbe bond, tbe defendant would be entitled to a trial by jury (Const. U. S., art. VII; Const. Wis., art. I, sec. 5), and such a cause of action cannot be joined with one founded on principles of equity, though b otb grow out of tbe same transaction. This has been held by tbe supreme court of Ohio, and in *Hammond vs. Deaver,*Western Law Monthly for November, 1860, p. 591.

*662Mnmons, *Van Dyhe &*Hamilton, for respondent.

[No argument on file.]

May 15.

*By the*Court,

Cole, J.

Within tbe decisions of this court, the demurrer in this case was not frivolous. Eor we bave beld in several cases that a frivolous pleading was one wbicb tbe court could say, upon a bare examination and inspection of it, without argument, bad no merits, and was clearly insufficient Tbe complaint asks for a foreclosure and sale of tbe mortgaged property, and also for a judgment against tbe mortgagors for any deficiency wbicb might be found due. It is objected that these causes of action cannot be joined, since to do so would be to unite an action at law upon a bond, with a suit in equity to foreclose a mortgage. And we bave been referred, in support of this objection, to one or two unreported cases in Ohio, where it has been beld that a cause of action, on tbe trial of wbicb tbe party was, by tbe constitution, entitled to a jury trial, could not be joined with a cause of action founded on equitable principles, though both cases grew out of tbe same transaction. These decisions raise questions of grave importance, wbicb we are unwilling to decide without argument. In tbe case of *Dunkley vs. Van Buren,*3 Johns. Ch. R., 330, Chancellor KeNT stated that a party, on a bill to foreclose a mortgage, was confined in bis remedy to tbe pledge, and that such a suit was not intended to act *in personam.*And under tbe old practice, tbe understanding seems to bave been that a party must proceed in equity against tbe security, and bring bis action at law upon bis bond for any deficiency. By section 77, chapter 84, R. S. 1849, it was provided that when a bill was filed for tbe foreclosure of a mortgage, on tbe coming in of tbe report of sale, tbe court might decree and direct tbe payment by tbe mortgagee of any balance of tbe mortgage debt that might remain unsatisfied after a sale of tbe premises, in tbe cases in wbicb such balance is recoverable at law. If tbe Ohio decisions are sound, then such a provision of law would be unconstitutional. Still it bad been in force for many years in New York before it was adopted here, and we cannot discover that its validity has *663been called in question. But this provision bas been left out of tbe revision of 1858, and it may even be a question whether a party can, in the same suit, have his remedy *in rem*and *in personam.*This question is fairly presented by this demurrer. And we are unwilling to express an opinion upon the point without argument. The circuit court, therefore, erred in giving judgment for the respondent oh account of frivolousness of the demurrer. .

The judgment of that court must therefore be reversed, and the cause remanded for further proceedings according to law.