
    Windross, Respondent, vs. McKillop and another, Appellants.
    
      February 10
    
    
      March 1, 1898.
    
    
      Appeal: Failure to apply for correction of manifest error: Costs.
    
    .An appeal from a judgment of foreclosure on the sole ground that it provides that the amount due thereon shall bear interest at a rate in excess of the minimum legal rate, in violation of sec. 8164, R. S. 1878, as amended by ch. 303, Laws of 1891, is without merit where the attention of the trial court was not called to the obvious mistake; and on reversal of the judgment, as required by Supreme •Court Rule XXXII, no costs will be allowed except that respondent will be required to pay the fees of the clerk of this court.
    Appeal from a judgment of the circuit court for Oconto county: S. D. Hastings, Je., Circuit Judge.
    
      Affirmed in part; reversed in part.
    
    The plaintiff commenced this action to foreclose a mortgage executed by the defendant MeKillop. Personal service •was had on all of the defendants. The defendant MeKillop suffered default, and the other defendants appeared but put in no answer. Due notice of application for judgment was given, and on December 21, 1896, judgment of foreclosure was entered. The note secured by the mortgage bore interest at eight per cent, per annum, and, by inadvertence, plaintiff’s attorney included a provision in the judgment that the amount due thereon should bear interest at that rate. Defendants MeKillop and the Holt Lumber Oompa/ny appeal from said judgment. ,
    For the appellants the cause was submitted on the briefs of Reinhart & Truddl.
    
    For the respondent there was a brief by Morrow da Kynch, attorneys, and Sheridan c& Kuans, of counsel, and oral argument by,IF. L. Evans.
    
   BáRdeen, J.

Sec. 3161, R. S. 1878, as amended by ch. 303, Laws of 1891, provides that the amount adjudged to be due in any judgment for the foreclosure of a mortgage shall draw interest at the rate provided to be paid, on the mortgage debt, but shall not exceed the minimum legal rate of interest. Sec. 1688, R. S. 1878, as amended by ch. 61, Laws of 1893, fixes the minimum rate of interest at six per cent. It was therefore error for the plaintiff to 'include any greater rate of interest in the judgment than six per cent. It was error, however, which the trial court would have corrected on mere suggestion, had its attention been called to it, and •would thus have saved all parties the expense of an appeal to this court. The failure to do so leaves the appeal without merit. Rule XXXII of this court, however, requires us to reverse the judgment.

By the Court.— That portion of the judgment requiring eight per cent, interest on the amount found due is reversed, and the cause is remanded to the circuit court with directions to so modify the judgment as to bear interest at the legal rate. No costs will be allowed except that respondent must pay the fees of the clerk of this court. The remainder of the judgment is affirmed.  