| Ohio | Dec 15, 1876

Gilmore, J.

After the service and return of the summons, the defendants, without protesting against submitting themselves to the jurisdiction of the court, filed a motion to strike from the files the summons and return thereof, etc., “ and generally said defendants move to strike from the case all the papers herein filed, on the ground of irregularities and defects.” Even on the hypothesis that the summons and service were defective, the clause of the motion just quoted reached back of the summons, and struck at the regularity and sufficiency of the petition filed in the action. This, we think, was an appearance of the defendants in the action, and precluded them from denying the jurisdiction of the court on the ground that the summons or service was defective. Evans v. Hes, 7 Ohio St. 233.

This holding would be sufficient to dispose of the case, and authorize the overruling of the motion; but inasmuch as counsel have discussed another question that is in the case, and which is deemed of practical interest to the profession, we will express our views upon it.

The notes mentioned in the petition were made and delivered by Maholm alone, to the plaintiff below. If the action had been brought against him alone on these notes for the recovery of money only, jurisdiction of his person could not have been acquired by the court in Perry county, by the service of summons in another county. Civil Code, sec. 53.

But the notes were secured by a mortgage executed and delivered by Maholm to Marshall upon lands situate in Perry county; and in the action the plaintiff below sought a foreclosure of the mortgage, and also a personal judgment on the notes, against Maholm. The defendant, Taylor, does not join in the proceedings in error, nor is he interested in the questions raised by Maholm upon the record.

For the purpose of foreclosure, the court in Perry county unquestionably had jurisdiction of the action, and for this *615purpose the service of a summons without any indorsement, upon Maholm, in Licking county, would have been sufficient. Civil Code, sec. 58.

• According to the'chancery practice in this state previous to the adoption of the code; a proceeding to foreclose was a proceeding in one sense both in personam and in rem. It was a proceeding in personam, because it sought to charge the defendant with a debt.

An account had to be taken against the defendant before the property was subjected, and the account thus found became a debt of record against the defendant; and when personal service had been had, the decree was so frame-d, when desired, that after the mortgaged property was exhausted, execution could be had on the decree for the balance remaining due, as upon judgment at law. Hamilton v. Jefferson, 13 Ohio, 427 ; Myers v. Hewitt, 16 Ohio, 449; Moore v. Starks, 1 Ohio St. 369.

The practice in this respect was not changed by the code as originally adopted, and where no additional remedy is desired, it is still proper under the code, where personal service has been had upon the party liable, for the court to award execution as upon judgments at law for any balance remaining due after exhausting the mortgaged premises. This practice was justified on the ground that it rendered an.action at law upon the notes unnecessary where the plaintiff only desired execution for the deficiency after exhausting the mortgaged premises ; but an execution in advance of the sale on foreclosure could not be had in such cases.

In McCarthy v. Garraghty, 10 Ohio St. 438, which was decided in 1859, it was held, in substance, that where no objection was taken on the ground of misjoinder of causes "of.action, or to the form of the petition which set out the note and mortgage, as either constituting but one cause of action, or as two causes of action separately stated, and asked for a judgment, and also for the sale of the mortgaged premises, it was not erroneous to render a judgment on the. note,' and also a judgment for the sale of the mort*616gaged premises; and farther, that the judgment would operate as a lien upon the property of the defendant, other than that mortgaged, as if it had been rendered in a separate action.

It does not appear by what process the defendant was brought into court, but it is fair to presume that it was the ordinary summons of the code, which could have been well served in any county of the state.

At the close of the per curiam in this case, it is said : “Whether there would in such case be a misjoinder of the causes of action, is a point not presented and not decided.”

The doubt here expressed probably led to the passage of the act of February 19, 1864 (S. & S. 575), wdiich reads as follows : “ That in all actions for the foreclosure of mortgages given to secure the payment of money, or in which a specific lien for money claimed to be due is sought to be enforced, the plaintiff may also ask, in his petition, a judgment for the money claimed to be due; and such proceedings shall be had, and judgment rendered thereon, as in other civil actions for the recovery of money only.” This exactly meets and provides a remedy for the doubt impliedly expressed in McCarthy v. Garraghty, and it will be observed that the right to ask for and obtain a personal judgment, is made a mere incident to the action for foreclosure; and it could not reasonably have been the intention of the legislature, by annexing this incident, to require the form of the summons, or manner of the service thereof under this act, to be different from that provided by the code in actions for the foreclosure of mortgages only.

The words, “ and such proceedings shall be had, and judgment entered thereon,” as used in the last clause of the act, have no reference to the process in the case, but to the action of the court therein, after obtaining jurisdiction of the person of the defendant.

In proceedings for the foreclosure of mortgages, either under the old chancery practice or under the provisions of the code, the service of the subpena or summons, could be made upon the defendant in a county in the state, other *617than that in which the lands were situated, and action brought, and in actions asking for foreclosure, and also a personal judgment under the act of 1864, the venue being fixed by section 45 of. the code, the summons may be properly served on the defendant in any county in the state. The summons was indorsed with the amount claimed to be due, as in actions for the recovery of money only, and it is urged that this vitiates the service in this case. Speaking for myself, it seems to me that this was proper, and that the amount of the judgment in actions brought under this statute, as in actions for the recovery of money only, should be limited to the amount claimed to be due, and indorsed on the summons. But be this as it may, we are all of the opinion that the fact that the amount claimed to be due was indorsed upon the summons' served did not vitiate the process.

Motion overruled.