55 P. 659 | Idaho | 1898
— This action is brought by the plaintiffs to set aside and have declared void a judgment of foreclosure of mortgage made and entered by the district court for Ada county on April 6, 1895. The complaint set forth the execution of the notes and mortgage by the defendants Susan D. Curtis and Edward J. Curtis, her husband; that the property set forth and de
“It is hereby stipulated and agreed by and between S. L. Tip-ton, attorney for plaintiffs, and Alfred A. Fraser, attorney for defendants, E. J. Curtis and Susan L. Curtis, that the amended and supplemental complaint may be filed the same as if it were*302 the original complaint in the action; and the said Alfred A. Fraser, attorney for defendants, therefore waives all notice and other proceedings as to the filing of notice and affidavits in supplemental complaint.
“Signed the twenty-fifth day of February, 1895.
“ALFRED A. FRASER,
“Attorney for Defendants.”
That on the twenty-fifth day of March, 1895, it was stipulated and agreed by the attorney for the plaintiffs in said action (defendants herein) that the answer of said Susan L. Curtis to the complaint in said action should stand and be considered by the court as the answer to the amended complaint therein, and that all the allegations of the said amended complaint in regard to the reformation of the certificate of acknowledgment of said mortgage therein described should be deemed specially denied by said answer. On the sixth day of April, 1895, the following stipulation was filed in said cause:
“It is hereby stipulated by and between the parties to this action and their attorneys that the court may enter judgment reforming the certificate of acknowledgment in accordance with the prayer of plaintiffs’ amended complaint herein, and that judgment may be entered for the plaintiffs against the defendants,. Edward J. Curtis and Susan L. Curtis, for the sum to be found due thereon, decreeing the foreclosure of the mortgage as in plaintiffs’ complaint, and that a stay of execution be granted to the defendants for one year from the date of said judgment, said judgment to bear interest at the rate of eight per cent (8 per cent) per annum.
(Signed) “S. L. TIPTON,
“Attorney for Plaintiffs.
“ALFRED A. FRASER,
“Attorney for Susan L. Curtis.”
On the sixth day of April, 1895, decree of reformation and foreclosure was entered by the court in said action, and is in the words and figures following: “This cause having been this day brought on to be heard on the plaintiffs’ amended complaint filed herein, and upon the answer of Susan L. Curtis thereto, and the cross-complaint of Remus Goodrich and Thomas Kitto, and
The appellants set up three assignments of error: 1. That the judgment is void for uncertainty, for that the judgment is that the certificate of acknowledgment, as set forth in the plaintiffs’ amended complaint, be amended and reformed in conformity with the prayer of said amended complaint. There is no amendment of the' certificate of acknowledgment whatever. This contention is predicated upon the assumption that the certificate of acknowledgment was defective. Said certificate is as follows:
"State of Idaho, ) County of Ada.) ss.
“On this third day of November, A. D. one thousand eight hundred and ninety-two (1892), personally appeared before me*304 Jonas W. Brown, a notary public in and for said county, Susan L. Curtis and Edward J. Curtis, husband and wife, whose names are subscribed to the annexed instrument as parties thereto, personally known to me to be the same persons described in and who executed the said annexed instrument as parties thereto, and who, each of them, acknowledged to me that they, each of them, respectively, executed the same freely and voluntarily, and for the uses and purposes therein mentioned. And the said Susan L. Curtis, wife of the said Edward J. Curtis, having been by me first made acquainted with the contents of said instru-’ ment, acknowledged to me, on examination apart and without the hearing of her husband, that she executed the same freely and voluntarily, without fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same. In witness whereof, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. My commission expires on the thirteenth day of November, 1893.
[Seal] “JONAS W. BBOWN,
“Notary Public, Boise City, Idaho.”
We held in Bank v. Rauch, 5 Idaho, 150, 51 Pac. 764, and in Christensen v. Hollingsworth, ante, p. 87, 53 Pac. 211, 271, that such a certificate was a substantial compliance with the statute. The certificate being sufficient, no amendment of the complaint for the purpose of reforming it was necessary, and consequently it was not essential to incorporate such reformation in the decree. The trial court erred in treating the amendment as material, but such error wrought no prejudice to the defendants in that action. Under the rule laid down by the court in Trust Co. v. McGregor, 5 Idaho, 510, 51 Pac. 104, and in the authorities cited in that ease, the amendment must be material to make service thereof necessary.
The second assignment of error is that “the judgment is void because the said complaint was amended in a material matter, and the said amended complaint was never served upon E. J. Curtis nor upon his attorney.” As already stated, the amendment to the complaint was not material. Where the amendment is not material, and, a fortiori, where it is entirely unnecessary,
Appellants’ third specification of error is:
“Because judgment cannot be rendered upon one of two joint debtors by confession of one. In such case the judgment is void as to both.” We are somewhat at a loss to understand what counsel means by judgment by confession, as applied to this case. The case, as stated by the court, was heard upon complaint, answer, and proofs. It is true that upon the same day judgment was entered the parties, by .their attorneys, entered into a stipulation, entirely for the benefit of the defendants, whereby plaintiffs consented to a stay of execution for one year from the date of the judgment, with interest at eight per cent per annum — two per cent less than they were entitled to under the statutes. We fail to find anything in the record that resembles "'a judgment by confession.” We think the order and judgment of the district court was entirely correct. Judgment of district court affirmed, with costs to respondents.