Martin v. Weil

Decided June 15, 1859

Wisconsin Supreme Court · decided 1859-06-15

This was an action to foreclose a mortgage made by Henry Berliner and Julius Bruno to the plaintiff to secure the payment of $16,000… Held: in Tiernan vs. Hindman, 16, Ill. R., 400, that a proviso in a mortgage that the whole sum shall become due upon the failure to pay any one of the installments, is in the nature of a penalty, against which equity will relieve upon adequate compensation, viz: Payment of the installment due, interest thereon, and the costs in proceeding…

Decided 1859-06-15

¶1By the Court,

Smith, J.

¶2We have been so often called upon to review decisions upon the motions to strike off answers and demurrers as frivolous, and upon such reviews, have been presented with labored arguments on both sides, and having so frequently asserted the rule in such cases, that it seems entirely unnecessary to enter upon the discussion of this matter again. The answer in this case is not frivolous, as the arguments of counsel most clearly show. If the answer is insufficient, the remedy under the code is ample. (See Van Slyke vs. Carpenter, Farmers’ & Millers’ Bank vs. Sawyer, and cases cited.)

¶3Order reversed with costs, and cause remanded.