Field v. Snow

• Decision Date: 15 May 1900
• Citation: 82 N.W. 798,124 Mich. 68
• Court: Michigan Supreme Court
• Parties: FIELD v. SNOW, Circuit Judge.

82 N.W. 798

124 Mich. 68

FIELD v. SNOW, Circuit Judge.

Supreme Court of Michigan

May 15, 1900

Application by Asa W. Field for a writ of mandamus to compel Byron A Snow, judge of Saginaw circuit court, to vacate an order quashing the service and proceedings under a petition filed by the relator to determine the amount of a deficiency arising under a mortgage foreclosure. Writ granted.

Humphrey & Grant, for relator.

Weadock & Purcell, for respondent.

HOOKER J.

The petitioner was complainant in foreclosure proceedings wherein John W., John H., and H. Kirk Howry were (among others) defendants. They appeared in the case by resident counsel who required and received a copy of the bill, but did not answer, and a decree was taken pro confesso. This decree recited that they were personally and primarily liable for the debt, and that unless they should pay the same the premises should be sold, and a report of sale including any deficiency, should be made by the commissioner. It was further decreed that 'the right is reserved to John W. Howry, John H. Howry, and H. Kirk Howry, and to each of them, to make the defense that they have been discharged in bankruptcy, in any proceeding that may be hereafter had and taken to enforce any deficiency that may be reported by the commissioner in his report of sale.' A deficiency was reported. All of these three defendants were nonresidents of the state, and each was personally served with a copy of the petition for execution, and the notice of hearing the same, at a place not within this state. No order for a substituted service was procured, but this was waived, so far as it could be, upon the hearing. Copies of the petition and notice were also served upon the solicitors, who had represented the defendants in the foreclosure case. They appeared specially, and moved to quash the service and proceedings, as invalid, and this motion was granted. We are asked to compel the court to vacate that order, and proceed to hear the questions raised by the petition.

The right to a decree for a deficiency remaining after sale, and application of the proceeds of mortgaged premises to the drbt secured, depends upon statute. See Pub. Acts April 23, 1833 (Rev. St. 1838, p. 376, � 105); Lawrence v. Fellows, Walk. Ch. 470; Johnson v. Shepard, 35 Mich. 122; McCrickett v. Wilson, 50 Mich. 516, 15 N.W. 885. See, also, 9 Enc. Pl. & Prac. 451, 452; McCarthy v. Graham, 8 Paige, 480. Where the bill alleges the necessary facts and contains the requisite prayer, and a subpoena, accompanied by the proper underwriting, is personally served upon a defendant, the court may in its original decree determine the question of personal liability for a deficiency. Outhwaite v. Porter, 13 Mich. 540; Johnson v. Shepard, 35 Mich. 125; Gies v. Green, 42 Mich. 107, 3 N.W. 283; Booth v. Insurance Co., 43 Mich. 299, 5 N.W. 381; To view preceding link please click here Ransom v. Sutherland, 46 Mich. 492, 9 N.W. 530; Jehle v. Brooks, 112 Mich. 132, 70 N.W. 440; Ward v. Obenauer (Mich.) 77 N.W. 305; Simons v. McDonnell (Mich.) 79 N.W. 916. Such decree is final, and cannot be afterwards questioned, except upon rehearing or bill of review. Johnson v. Shepard, 35 Mich. 125; Ransom v. Sutherland, supra; Haldane v. Sweet, 58 Mich. 429, 25 N.W. 383; Wallace v. Field, 56 Mich. 3, 22 N.W. 91; Corning v. Burton, 102 Mich. 97, 62 N.W. 1040; Jehle v. Brooks, 112 Mich. 133, 70 N.W. 440; Ward v. Obenauer, supra; Simons v. McDonnell (Mich.) 79 N.W. 916. Before payment can be decreed or execution issued, the amount of the deficiency must be adjudicated, after the report of sale has been made. Johnson v. Shepard, supra; Howe v. Lemon, 37 Mich. 166; Gies v. Green, 42 Mich. 108, 3 N.W. 283; Ransom v. Sutherland, supra. That is the object of the proceeding commenced by the petition.

The crucial question in the case is whether the defendants are properly before the court. It is contended on their behalf that no absolute decree for the payment of a deficiency can be made, except on personal service of a copy of the sworn petition, and notice of the time and place of hearing. We have cases which hold that a decree in personam cannot be made where the defendant is not personally served with proper process. Booth v. Insurance Co., supra; Gies v. Green, supra; Vaughan v. Black, 63 Mich. 218, 29 N.W. 523; Ransom v. Sutherland, 46 Mich. 492, 9 N.W. 530. But where this has been done, not only have we held that the decree is final, but also that a substituted service may be made in the supplementary proceeding. It is true that this has been called a 'new proceeding,' but it has always been considered supplementary. Johnson v. Shepard, supra; Ransom v. Sutherland, supra; Shelden v. Barlow, 108 Mich. 377, 36 N.W. 338; Prentis v. Richardson's Estate, 118 Mich. 260, 76 N.W. 381. And the cases seem to contemplate that something less than personal service will support an execution for the deficiency, which could hardly be said if it were not that the court had already jurisdiction of the parties by the service of the original process. Ransom v. Sutherland, 46 Mich. 492, 9 N.W. 530; McCrickett v. Wilson, 50 Mich. 515, 15 N.W. 885. The statute has not provided for a service of any particular kind, or by any prescribed...