51 P. 102 | Idaho | 1897
This suit was brought to foreclose a mortgage on real estate, and prosecuted to judgment. The mortgaged premises were sold under a' decree of foreclosure, and bid in by the mortgagee. After the period of redemption had expired, a sheriff’s deed was duly executed, and thereafter possession of said premises was demanded, which the appellant, Thyrza C. McGregor, refused to grant. Thereupon the respondent applied for a writ of assistance, which application- was resisted by the appellant. After a hearing, the court granted the writ. This appeal is from that order.
The respondent moves to dismiss the appeal, and specifies several grounds therefor, the first three of which are to the effect that the notice of appeal was not served on the parties the statute requires it to be served on. The record shows that Messrs. Forney, Smith & Moore, of Moscow, Idaho, were the resident attorneys of the respondent in the court below, and that, when the notice of appeal was about to be served on them, they stated that they had been discharged, and were no longer attorneys in the case. Thereupon the notice of appeal was sent by mail to the nonresident attorney at Spokane, Washington, and personally served on I. C. Hattabaugh, the duly appointed resident agent of the plaintiff corporation, on whom process might be legally served. The facts warrant us in holding that the service of the notice of appeal was sufficient, leaving out of consideration the fact that the respondent made general ap-
Tbe fourth ground urged is that the appeal was not taken within sixty days after the entry of the order granting the writ of assistance. As a matter of fact, the order appealed from was entered or filed July 3, 1896, and the notice of appeal served on August 27, 1896, In the notice of appeal there appears a clerical error. The date “June 3d” appears for July 3d, But this mistake did not mislead the respondent, and is therefore immaterial. In this ease there was but one order granting a writ of assistance, and that was filed July 3, 1896, and the record shows that that is the order appealed from.
The fifth and sixth grounds for dismissal have been examined, and we find no merit in them. The motion to dismiss must be denied, and it is so ordered.
The motions to strike the bill of exceptions and the transcript from the record have been carefully examined. The question of the proper service of them is raised, and we are disposed to hold that the motions to strike must be denied.
The answer of the appellant to the application for the writ of assistance sets forth her objections to the writ being granted. She attacks the judgment and decree of foreclosure, and avers the same to be void, for the reason that the court had “no jurisdiction to enter the same.” In support of this contention, it is urged that an amended complaint was Bled in the case, and that the same was not served on the appellant’s codefend-ants; that said amended complaint was an amendment to the original complaint in matters of substance, and added an entirely new cause of action. 'It appears from the record that there was a defect in the certificate of acknowledgment to the mortgage, and the amendment to the complaint alleged that fact, and asked to have it corrected and made to conform to the facts. The other defendants had made default, and, as the amendment related to the evidence by which the execution of mortgage could be established, that was a question wholly between the appellant and respondent. The other defendants Bid not dispute the fact of the proper execution of said mortgage, and it was alleged that it was duly executed. The appellant, therefore, is not in a position to object for her code-
The foreclosure of a mortgage and the reformation of a certificate of acknowledgment may be accomplished in the same suit when the complaint contains all necessary averments. Such foreclosure and reformation, upon proper allegations, may be demanded in a single cause of action. (Hutchinson v. Ainsworth, 73 Cal. 452, 2 Am. St. Rep. 823, 15 Pac. 82.)
The record as presented to this court affirmatively shows that the lower court had jurisdiction to enter the judgment and decree that was entered. Therefore the regularity of the proceedings and jurisdiction of the court below must be presumed by this court on this appeal. We find no error in the record, and the order appealed from must be affirmed.
