1860. June Term, mistaken one. The first section provides, that whenever an action shall be commenced for the satisfaction or foreclosure of any mortgage, upon which a part only of the principal or CRIBB et al. interest shall be due, and other portions to become due sub RICE V. sequently, the action shall be dismissed, upon the defendant's bringing into court, at any time before the order of sale, the principal and interest due, with costs. The second, that if, after an order of sale shall be entered against a defendant in such case, he shall bring into court the principal and interest due, with costs, the proceedings shall be stayed; but the court shall enter judgment of foreclosure and sale, to be enforced by a further order of the court upon a subsequent default of payment of any principal or interest thereafter to grow due. The third, that if the defendant shall not bring into court the amount due, with costs, or if for any other cause judgment shall be entered, the court shall direct a reference to a proper officer, to ascertain and report the situation of the mortgaged premises; and if it shall appear that the same can be sold in parcels, without injury to the interests of the parties, the judgment shall direct so much of the premises to be sold as will be sufficient to pay the amount then due, with costs, and such judgment shall remain as security for any subsequent default. The fourth of the sections above referred to declares, that if, in the case mentioned in the preceding section, there shall be any default subsequent to such judgment, in the payment of any portion or instalment of the principal, or of any interest due upon such mortgage, the court may, upon petition of the plaintiff, by further order founded upon such first judgment, direct a sale of so much of the mortgaged premises to be made under the judgment, as will be sufficient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon; and the same proceedings shall be had as often as default shall happen. These provisions sufficiently show that there is to be but one judgment of foreclosure and sale. It being a proceeding in rem, as well as in personam, and most frequently attended with heavy expenses, it would, beside the inconsistency of allowing several judgments to be entered for the foreclosure of one mortgage, be a most grievous burden, if 1860. RICE the mortgagors were to be subjected to costs of a separate June Term, action and judgment, on each default in the payment of any portion of the principal or interest. There can be but one judgment, and in a case like the present, it should contain CRIBB et al. an order that the plaintiff, upon default in the payment of any instalments of principal or interest thereafter to grow due upon the notes and mortgage, be at liberty to come before the court, and, upon petition, to obtain a further order, founded on such judgment, directing the sale of so much of the mortgaged premises as will be sufficient to satisfy the amount so due, with costs of petition and subsequent proceedings thereon, and so on from time to time, as often as a default shall happen. This, in our opinion, is the course of proceeding plainly indicated by the statute; and in a case like the present, it might be very doubtful whether, after taking a judgment like that appealed from, the plaintiff could, on default of the payment of a future instalment, resort to the mortgage as a security to enforce it. We were referred by the respondent's counsel to the forms commencing on pages 615 and 617 of the 2d volume of Barbour's Chancery Practice. That commencing on page 615, is where a part only of the debt is due and the premises cannot be sold in parcels. It was upon this that Howe vs. English was decided. That beginning on page 617, is where a part of the debt is not due and the premises can be sold in parcels. It was this last which the counsel says he pursued in the presAn examination of it, if we are to go to forms to ascertain the law, will show that it not only finds the amount actually due, but the sum secured and unpaid upon the mortgage, and also that it decrees that on the foot of the judgment a further order of sale may be made, to satisfy any subsequent instalment of principal or interest which may thereafter remain unpaid. In this respect it was probably a compliance with the requirements of the statutes of New York, from which our own are for the most part taken. ent case. This court has frequently held that a reasonable solicitor's fee, in case of foreclosure, might be stipulated for in the mortgage and recovered in the action; and in the present case we do not think it unreasonable that the plaintiff, in ad June Term, 1860. VAN NESS et al. V. CORKINS. dition to his statutory costs, should recover that which the defendants agreed to pay. The judgment must be reversed, and the cause remanded for further proceedings in accordance with this opinion. July 10. VAN NESS and another, impleaded with NICHOLS and others, vs. CORKINS. Where a motion is made during the progress of a cause, it is irregular to order that the costs allowed on a denial of the motion be entered in the final judg ment in the action. The payment of such costs is to be enforced by a special proceeding, to be taken according to the provisions of chapter 149 of the Revised Statutes of 1858. A judgment may be entered against any one or more of several defendants, wherever a several suit might have been brought, or a several judgment upon the facts of the case would be proper; and that without regard to the character of the complaint, and whether it alleges a joint or several liability. ERROR to the Circuit Court for Rock County. The facts in this case are sufficiently stated in the opinion of the court. Knowlton, Prichard & Jackson, for plaintiffs in error. By the Court, DIXON, C. J. This was an action commenced by the defendant in error (plaintiff below) in the circuit court for the county of Rock, againt Van Ness and Hill as the makers, and Nichols and others as the indorsers, of a promissory note, to recover a sum of money alleged to have been due upon the same. The summons was regularly served upon Van Ness and Hill in the county of La Crosse, where they resided. Nichols and others, the indorsers, who resided in the county of Rock, were not served. No attempt was made to serve them. Van Ness and Hill answered, setting up that the note was given to Nichols and others, the payees and indorsers, on the purchase from them of a portable grain mill, which was warranted by the payees to be perfect in all parts and machinery, and to do business in a particular its 1860. VAN NESS et al. V. CORKINS. manner, and alleging a breach of the warranty, and damages June Term, to the full amount of the note, and that the defendant in error was not a bona fide holder of it. The answer was accompanied by a demand that the trial be had in the proper county, to wit, the county of La Crosse, instead of the county of Rock, as designated in the complaint. This demand was followed by a motion to the court at the same term of, but before the trial, that the venue be accordingly changed. This motion was overruled with five dollars costs to be paid by the defendants to the plaintiff below; and it was further ordered that the same be inserted in the judgment in the case as costs of the action. At a subsequent day of the term the cause was tried before a jury, who returned a verdict for the plaintiff and against the defendants below, for the amount of the note and interest. Upon the receipt of the verdict, the attorneys for the plaintiff suggested that the defendants Nichols and others, indorsers, had not been served with process, and asked leave of the court to enter the verdict and judgment against Van Ness and Hill alone, which was accordingly granted. That the verdict and judgment were so entered, appears from recitals contained in the judgment itself. A bill of exceptions, embodying the exception of the defendants Van Ness and Hill to the order of the court refusing to change the place of trial, was afterwards settled; but on the case reaching this court, it was stricken out for irreg ularity. And although we are, for that reason, precluded from considering the regularity of the order, yet we may be permitted to say that it was clearly irregular in directing that the costs allowed on the motion be inserted in the final judgment of the cause. Such costs form no part of those finally taxable on the recovery of judgment. The payment of such costs is to be enforced by a special proceeding, to be taken according to the provisions of chapter 149 of the Revised Statutes, which are the same as those of chapter 115 of the Revised Statutes of 1849. This direction to insert the costs in the judgment, might result in a reversal of the order itself in that respect, for how could the court foresee that the plaintiff was to recover judgment? If the defendants succeeded on the trial, and the costs were inserted, then them. June Term, they would receive the costs of the motion instead of paying 1860. The case does not show whether these costs were included in the final judgment or not, and therefore, it is unCOLE et al. necessary for us to consider how their insertion would affect ADLER the judgment. After the bill of exceptions was rejected, it was still contended by the counsel for the plaintiffs in error, that the judg ment must be reversed, because it was irregular in being entered against the defendants Van Ness and Hill alone. But in this we think they are mistaken. Under the 184th section of the Code, (sec. 26, chap. 132, R. S.,) a judgment may be entered against any one or more of several defendants, wherever a several suit might have been brought, or a several judgment upon the facts of the case would be proper; and that without regard to the character of the complaint, and whether it alleges a joint or several liability. The true test is, whether a separate action might have been maintained; and if it could, a several or separate judgment is proper. The complaint in this case alleged a separate cause of action against the defendants Van Ness and Hill, as the makers of the note. The plaintiff might, at his option, have brought a separate action against them. At the common law, he would have been compelled to do so. By section 24 of the Code, (sec. 21, chap. 122, R. S.,) he may include any or all of the parties to a bill or note in the same action, to suit his pleas ure or convenience. Section 174 of our Code was identical with section 274 of the Code of New York; and as to the construction which it has received by the courts of that state, see 1 Kern., 294; 2 id., 336; 15 Barb., 524; 16 id., 33; 19 id., 321; 21 id., 26; 9 How., 204; 8 id., 151; 3 E. D. Smith, 591; and 2 Abb., 358. The judgment of the circuit court is therefore affirmed, with costs. ADLER VS. COLE and others. The district court of the United States for the district of Wisconsin, has the power to adopt by rule, and, in the cases provided by law in this state, to is |