59 P. 179 | Idaho | 1899
— The plaintiff commenced this action in the court below to foreclose a mortgage. Two of the defendants were served with summons in this state; one John E. Harper, the principal defendant, being absent. Order for publication of summons against said absent defendant, Harper, was duly made February 10, 1898. In lieu of publication of the summons, the plaintiff caused the summons and copy of complaint to be served upon said defendant, Harper, personally on the twenty-first day of February, 1898, in the city of Chicago, in the state of Illinois. The default of said defendant, Harper, was entered by the clerk in the action on April 19, 1898. April 25, 1898, said defendant, H arper, filed a motion to set said default aside, upon the ground that the same was entered before the time of said defendant to answer had expired, and thereafter filed a demurrer to the complaint. On May 5, 1898, said motion came on to be heard, and was denied; and on the same day, on evidence heard on behalf of the plaintiff, the court entered its decree of foreclosure in favor of the plaintiff
The principal question before us is, Was the default of the absent defendant prematurely entered? If so, the court below should have ¿'ranted said defendant’s motion to set the default aside, and its failure so to do was reversible error. The solution of this question depends upon the construction to be given to section 4146 of the Revised Statutes, which section is as follows: “The order must direct the publication to be made in