72 P. 180 | Utah | 1903
This is an action in equity to quiet title to certain real property; to declare void a certain mortgage covering the property, and purporting to have been executed by the plaintiffs to defendant Conway; to set aside all the .proceedings had under the mortgage, including a judgment and decree rendered in favor of defendant Higson in a foreclosure suit, where the mortgage was foreclosed and the property sold; and to enjoin the defendants, and each of them, from asserting any title or claim to the property, and from taking any further proceeding in respect to it by virtue of the decree of foreclosure. It appears from the ieeord that the foreclosure suit was instituted on November 2, 1900, and service of summons made by publication, the defendants therein (plaintiffs herein) then being non-residents and temporarily in Germany; that copies of the complaint and summons were mailed to them in Ger
The decisive question presented is, are they entitled to any relief in this action? We think not. Any relief to which they might have been entitled they could have obtained in the foreclosure suit, wherein they were parties defendant, had they used due diligence. They had actual notice of the pendency of that suit, but put in no appearance, made no defense, suffered a default to be entered against them, and a judgment of foreclosure to be rendered, and, without objection, a sale of the property in dispute to be iqade to an innocent purchaser, who, so far as shown by the record, had no notice of their claim that the mortgage was a forgery. They have, shown no excuse worthy of consideration for such negligence. Even after they came to Utah, within the jurisdiction of the court, they, previous to the filing of this suit in August, made no effort, by motion or otherwise, to set aside the proceedings in the foreclosure suit, so as to be permitted to answer to the merits; and yet all the while they had a plain, speedy, and adequate statutory remedy, by motion in the action in which the judgment they now seek to set aside and enjoin was rendered. In section 3005, Revised Statutes 1898, it is
We are of the opinion that the plaintiffs have mistaken their remedy, and that the demurrer to the complaint ought to have been sustained. Entertaining this view, it is unnecessary to discuss the other questions