Ransom v. Sutherland
| Decision Date | 01 July 1881 |
| Citation | 46 Mich. 489,9 N.W. 530 |
| Court | Michigan Supreme Court |
| Parties | RANSOM v. SUTHERLAND and another. |
In case of an application for an execution for the collection of a deficiency on a mortgage foreclosure, the proper practice is to make the application upon a sworn petition, which should be personally served upon the party against whom the execution is sought, with notice of the time when it will be presented. If personal service is impossible, the court, upon a showing of the facts, may direct substituted service. If the defendant, on being brought in, desires to contest the application, he should file an answer under oath setting out the grounds of his objections. If it present matter in discharge of decree, complainant may take issue upon it. The burden of proof to show discharge of decree is on the defendant. Only matters consistent with validity of decree can be shown.
Appeal from Berrien.
Clapp & Fyfe, for complainant.
N.A Hamilton, for defendants and appellants.
The misapprehension in respect to the proper practice in this case has been such as to necessitate a reversal of the order which is appealed from.
In August, 1879, Ransom took decree against Sutherland and others in a foreclosure case. The decree adjudged Sutherland to be personally liable upon a mortgage debt. A sale under the decree of all the land described therein was made October 8, 1879, and the commissioner reported a deficiency, after applying the purchase money to the decree and costs, of $583.61. December 30, 1880, complainant's solicitors served on the solicitor who had appeared for Sutherland in the foreclosure case a notice that on the third day of January, 1881, they would move the Circuit Court for an execution against Sutherland for "such deficiency as may remain unsatisfied on the decree rendered in this cause." The notice stated that the motion would be based "on the files, decree, report of sale and subsequent proceedings had in said cause."
At the time specified said solicitor for defendant appeared and objected that no notice of the motion had been personally served on the defendant. This objection was overruled, and time was allowed to answer the motion. January 19, 1881, the solicitors being in court, defendant's solicitor moved to dismiss the application for the want of any proper showing that complainant was entitled to execution. This was denied. He then assumed to file an unsworn answer for the defendant denying any indebtedness, but the terms of the denial were obviously such as to...
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...115;Howe v. Lemon, 37 Mich. 164;Gies v. Green, 42 Mich. 107, 3 N. W. 283;Mickle v. Maxfield, 42 Mich. 304, 3 N. W. 961;Ransom v. Sutherland, 46 Mich. 489, 9 N. W. 530;McCrickett v. Wilson, 50 Mich. 513, 15 N. W. 885;Vaughan v. Black, 63 Mich. 215, 29 N. W. 523;Shelden v. Erskine, 78 Mich. 6......
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...v. Reed, 30 Mich. 331. ‘The validity or justice of the decree cannot be inquired into on such an application.’ Ransom v. Sutherland, 46 Mich. 489, 9 N.W. 530, 531. ‘The proceedings after decree, in making the sale, having been duly confirmed, can no more be attacked in this proceeding, unle......
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Field v. Snow
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Field v. Snow
... ... 107, 3 N.W. 283; Booth v. Insurance ... Co., 43 Mich. 299, [124 Mich. 70] 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 ... ...