51 P. 104 | Idaho | 1897
(After Stating the Facts.) — The correctness of the order of the district court in granting to the respondent a writ of assistance depends upon the validity of the judgment of foreclosure in this case. The amendment of the complaint was evidently made for the purpose of alleging the existence of facts which were not alleged in the original complaint, and which could not, under the original complaint, be proven. The amendment was one of substance, and it was necessary that the amended complaint should be served upon each of the defendants. In Thompson v. Johnson, 60 Cal. 292, the court said: “The right to answer an amended pleading is one of which a party cannot be deprived even after entry of a default against-him on the original pleading; for, when a plaintiff amends in matter of substance, he, in effect, opens the default on the original pleading, and must serve his amended pleading upon all parties, including the defaulting defendant.” In the case of Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589, the court uses this forcible language: “An amendment to a complaint setting forth any allegation of a material fact, proof of which is necessary to enable the plaintiff to recover, is an amendment of substance.
Other defects fatal to the Judgment of foreclosure in this case appear in the record. The defendant, Henry McGregor, was not actually served with summons in the action, and did not appear in the action. The plaintiff filed an affidavit for publication of summons in the following words: “Isham N. Smith, being first duly sworn, deposes and says that he is one of the attorneys for the corporation plaintiff in the above-entitled action, and that the complaint in said action was duly filed on the twenty-sixth day of March, 1894; that the said complaint was duly verified; that the same was filed with the clerk of the above-entitled court, and summons issued thereupon ; that the said action is brought to foreclose a certain mortgage of date 14th of May, 1890, due May 1, 1895, for the sum of $2,500, with interest thereon at the rate of ten per cent per annum from date to maturity, together with $100 as attorneys’ fees, and the cause of action is fully set forth in the plaintiff’s verified complaint filed herein; that defendant last resided at Moscow, Latah county, Idaho, but that he has now departed from said state of Idaho, and cannot, after due and diligent search, be found therein; that affiant has made diligent inquiry of John Moore, J. B. West, Messrs. Goode & Burnham, who have been acting as counsel for Thyrza C. McGregor, and who would be likely to know where said defendant is, wife of the said Henry McGregor, and J. L. Naylor, sheriff of the county of Latah, state of Idaho, who reside at Moscow, Latah county, Idaho, and they all with one accord informed affiant that the
The affidavit for publication described the action as being “brought to foreclose a certain mortgage of date of 14th of May, 1890, due May 1, 1895, for the sum of $2,500, with interest thereon at the rate ten per cent per annum from date to maturity”; while it appears from the record in this case that this action was commenced to foreclose a mortgage given to secure one principal note dated May 14, 1890, given by the defendants Henry McGregor and his wife, Thryza C. McGregor, for $2,500, due May 1, 1895, with interest on the same at the rate of seven per cent per annum, payable semi-annually, according to the terms and conditions of-ten certain interest-bearing coupon notes, “which are described and alleged to be” in favor of plaintiff. The cause of action described in the complaint which we find in this record is not the one mentioned in the affidavit for publication, nor the one described in the amended complaint. Possibly there were two or more suits pending between the same parties, and the affidavits in some unaccountable
The order for publication of summons was made April 2, 1894. The judgment was entered on the twenty-ninth day of April, 1895; yet no proof of publication of the summons against the defendant Henry McGregor appears to have been made until May 14, 1896, one day after the hearing of the plaintiff’s motion for a writ of assistance in this case, and the same day that the order granting the writ of assistance appealed from was made. The lower court had no jurisdiction, under the circumstances, to render judgment of foreclosure. In a similar case (Reinhart v. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, and note, 24 Pac. 1089) the court said: “The default and judgment were void, not because there was no service, but because there was, at the time of entering the same, no proof of service.” Hnder the provisions of section 4456 of the Eevised Statutes, in cases when the complaint is not answered by any defendant, the “summons, with the affidavit of proof of service,” is a part of the judgment-roll. The practice of rendering judgment against a defendant who has not appeared in the action, where there is no proof of service upon him, is a dangerous one, and would lead to serious consequences, and cannot be tolerated. (Black on Judgments, see. 232.)
The summons in this case describes the cause of action in the following words: “The said action is brought to obtain a decree of this court for the foreclosure of a certain mortgage described in said complaint, and executed by the said Henry McGregor and Thyrza C. McGregor, on the fourteenth day of May, A. D. 1890, to secure the payment of a certain principal promissory note for $2,500, dated May 14, 1890, executed by the defendants Henry McGregor and Thyrza C. McGregor, and payable to the order of the plaintiff; also, to secure ten certain coupon notes attached to the said principal note, fully described in the complaint in this action; that the premises, conveyed by the said
Interest on Same.
Principal note.$2,500 00 $ 381 25
Coupon note No. 5 . 87 50 23 83
Coupon note No. 7 . 87 50 13 37
Attorney’s fees . 100 00
Taxes ’92, paid by plaintiff. 86 10 23 24
Taxes for 1893 . 48 25 7 83
Total.$2,909 35 $ 449 52
$3,359 07
Costs as per bill .$ 39 15.
This finding is astounding, when we consider that it is impliedly stated in the original complaint that the first six of the coupon interest notes had been paid, and expressly alleged in the amended complaint that the first six had been paid. In the decree no sum certain is adjudged to be due and unpaid on the mortgage debt, nor is any sum whatever therein adjudged to be due to the plaintiff, or mentioned at all, the only mention of any indefinite sum being in the direction to the sheriff in the decree in the following words: “That all and singular the mortgaged premises mentioned and subscribed in said complaint, and hereinafter described, or so much thereof as may be sufficient to satisfy the amount due to plaintiff for principal, interest,- charges, taxes, costs, disbursements, commissions on sale, and attorneys’ fees, and which may be sold separately without material injury to the parties interested therein, be sold at public auction by the sheriff of the county of Latah, state of
There was only one of the defendants who appeared after the complaint was amended as above stated, to wit, Thyrza C. Mc-Gregor, wife of the defendant, Henry McGregor. The pleadings show that the notes and mortgage were executed by both husband and wife, but it nowhere appears in the record whether the mortgaged premises were the separate property of either husband or wife, or their community property. Under these circumstances, the presumption is that the mortgaged premises were community property. But whether the property was the separate property of the husband, or the separate property of the wife, or the community property of both, under the provisions of section 4093 the husband was a necessary party, although the mortgaged property is the separate property of the wife, unless they are living separate and apart, by reason of the desertion of the husband, or by agreement in writing en
The court, in rendering the first opinion in this case, (ante, p. 330, 51 Pac. 102), confined itself to the issues made by the briefs of the respective parties. The brief of appellant did not refer to the allegations in the amended complaint, which are different from those in the original as to the debt sued on; it did not refer to the fact that the affidavit -for publications of summons stated a cause of action different from the one stated in the original and in the amended complaints; nor did it refer to the fact that the judgment absolutely failed to ascertain and determine the amount due on the mortgage debt involved in this action. In passing on this case in the first instance, we examined only those parts of the transcript necessary to a determination of the error assigned by the appellant's brief. When the petition for rehearing was presented, we examined the entire transcript, and found that it showed that the judgment upon which the judicial sale in question was based was void. The principal questions upon which this decision is based were not raised by appellant’s brief, nor by the petition for rehearing. The proceedings in this case, from the commencement of the action to the granting of the writ of assistance, could well be characterized as a comedy of errors. The order appealed from is reversed, with costs to appellant.
