Vermont Loan & Trust Co. v. McGregor

• Decision Date: 16 November 1897
• Citation: 51 P. 104,5 Idaho 510
• Parties: VERMONT LOAN AND TRUST COMPANY v. McGREGOR
• Court: Idaho Supreme Court

51 P. 104

5 Idaho 510

VERMONT LOAN AND TRUST COMPANY v. McGREGOR

Supreme Court of Idaho

November 16, 1897

PRACTICE - SERVING AMENDED PLEADINGS.-When the plaintiff files an amended complaint in which material facts, which are not alleged in the original complaint, are alleged, the amended complaint must be served upon all of the defendants against whom judgment is sought upon such amended complaint.

PUBLICATION OF SUMMONS.-An affidavit for publication of summons which describes as the basis of the action, a cause of action different from the one alleged in the complaint, cannot be made the basis for an order of publication, and an order for publication and publication of summons under such order are void, and do not give an absent defendant constructive notice of the pendency of the action.

VOID JUDGMENT.-A judgment foreclosing a mortgage which does not determine with certainty the amount due upon the mortgage debt is void.

WRIT OF ASSISTANCE.-To entitle the purchaser under a judicial sale to a writ of assistance, such purchaser must show a valid judgment.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed, with costs.

George W. Goode, for Appellant.

The nonservice of the amended complaint on defendants, Henry McGregor, J. B. West et al., through whom this appellant holds possession. Appellant's husband, Henry McGregor being the principal mortgagor, was a necessary party to the suit, and whenever the complaint was amended in matter of substance, a copy of such amended complaint should have been served upon him as required by statute, and without such service the judgment is absolutely void. (Code, secs. 4176 4228.) The above sections of our code are the same as those of California, and in several instances they have been construed by the supreme court of that state. The last case of that court directly passing upon the question is Reinhart v. Lugo, 86 Cal. 399, 21 Am. St. Rep. 52 and note, 24 P. 1089; Thompson v. Johnson, 60 Cal. 292.) The appellant's list of authorities in the latter case contains a large number of cases in point from other states. (McGary v. Pedrorena, 58 Cal. 92; Elder v. Spinks, 53 Cal. 294; Schuttler v. King, 12 Mont. 149, 30 P. 28; Barber v. Briscoe, 8 Mont. 214, 19 P. 590; Shaw v. Bryant, 66 Hun, 627, 20 N.Y.S. 785; Hittson v. Gentry (Tex.), 22 S.W. 70; 1 Am. & Eng. Ency. of Pl. & Pr. 645.) A writ of assistance will never be granted where there is the least doubt as to whether the applicant is entitled to the same. (2 Am. & Eng. Ency. of Pl. & Pr. 979, 980, notes; San Jose v. Fulton, 45 Cal. 316.) And a question of the insufficiency of service to give the court jurisdiction of the parties will be inquired into on a motion of this kind. (Steinbach v. Leese, 27 Cal. 295.) Statutory provisions for service of summons by publication must be strictly pursued. (People v. Huber, 20 Cal. 82.)

A. E. Gallagher and Fred W. Piper, for Respondent.

The amendment did not change the original complaint or add a new cause of action, but only so shaped the complaint that the facts of the execution of the mortgage, as alleged in the original complaint, might be proved and the evidence of it put in legal form. The amendment related wholly to the evidence by which the execution of the mortgage should be established, and the defaulting defendants had no interest whatever in this, as they were not disputing the facts, and it was a question wholly between the appellant and respondent. (Banbury v. Arnold, 91 Cal. 606, 27 P. 934, 935, 936; Keys v. Phelan, 19 Cal. 128; Hutchinson v. Ainsworth, 73 Cal. 452, 2 Am. St. Rep. 823, 15 P. 82; Idaho Code, secs. 4176, 4200; Newmark v. Chapman, 53 Cal. 557; Frisbie v. Fogarty, 34 Cal. 11.) The right of redemption had already expired as to all the defendants. West was among the defaulting defendants and was bound by the decree. (Wilder v. Campbell, 4 Idaho 695, 43 P. 677; Barnitz v. Beverly, 163 U.S. 118, 16 S.Ct. 1042; State v. Gilliam, 18 Mont. 94, 44 P. 394, 45 P. 661; Hardy v. Herriott, 11 Wash. 460, 39 P. 958.) Whether or not the defendant, Henry McGregor, was ever served with summons is a matter which does not concern the appellant, as she has not shown or attempted to show in any way that she acquired any right from the defendant, Henry McGregor, which would be a defense to the writ of assistance, and set up none in her answer. (McGray v. Pedrorena, 58 Cal. 91, 94; Newmark v. Chapman, 53 Cal. 557; Frisbie v. Fogarty, 34 Cal. 11.)

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

(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 P. 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. It is making a good lawsuit out of nothing, and is tantamount to the commencement of a new action." In Railroad Co. v. Van Riper, 19 Kan. 317, the court said: "Every person should have an opportunity of litigating the exact matter or claim upon which the judgment affecting his rights is finally rendered. But if one party may, in the absence of and without notice to the other party, amend his pleadings in a material respect, and take judgment thereon, then he may set up a new claim in his pleadings, and obtain judgment thereon, without the other party ever having any opportunity to dispute or litigate such claim. This would certainly not be the way that justice should be administered, and it is not the way that justice is usually administered."

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 said Henry McGregor is not within the state of Idaho; and that affiant was informed by said persons hereinbefore named that the said Henry McGregor is now in the state of New York and city of New York, the exact place and address of said Henry McGregor being unknown to them; that the summons was duly issued out of the above-entitled court, and placed in the hands of the sheriff of the county of Latah, state of Idaho with instructions to personally serve the same upon said defendant; that, after diligent search and inquiry, the said sheriff has made return thereon that he cannot find the said defendant Henry McGregor within the county of Latah, aforesaid, where this action is commenced and is now pending; and that he is informed and believes that the said Henry McGregor is without the county of Latah and state of Idaho at the city of New York, state of New York, aforesaid. Wherefore this affiant said that personal service of said summons cannot be had on said defendant Henry McGregor, and prays for an order that service may be had on said defendant Henry McGregor, by publication thereof. Isham N. Smith"--duly verified and filed April 2, 1894. Upon this affidavit an order for publication of summons against said defendant Henry McGregor was made by the district judge.

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...