McBride v. Hartwell
McBride v. Hartwell
Opinion of the Court
By the Court,
The record before us presents a novel state of things. Judgment was rendered against McBride, and the cause continued as to Lyon and his wife, for service—both of whom appear to have been served with the summons that was issued, and the attorney who represents the plaintiff in error here, as the attorney in the Court below of defendants Lyon, undertook to except to fhe rendition of the judgment against McBride. That is, for the purposes of a foreclosure they were not in Court, but for the purpose of excepting to the judgment against McBride they were in Court. The oral argument at the bar has not convinced us of the consistency of these positions. But it is not important in the view we take of the case, that they be reconciled.
There does not seem to have been any attempt to render a judgment which should effect the rights of the Lyons. For the purposes of the judgment they do not appear to have been regarded as in Court, and if they had been in Court we are at a loss to discover by what right they could except to the judgment against McBride.
He only could except to it. If it is excepted to, the exception must be regarded as his act; and his appearance for that purpose cured any defect in the notice. But if it is not to be regarded as his exception, then there is no exception; and it is doubtful whether we can look into the record.
However this may be, we have no hesitation in saying that the record presents nothing erroneous that We can take
The affidavit lays a sufficient foundation for the publication, and the notice contains all the statutory requisites, The proof of publication is not before us, there being no bill of exceptions showing what it was. The Court below was satisfied with the proof that was made, and we cannot presume that it was insufficient, whether the petition stated facts sufficient to constitute a cause of action is not a question we can loot into, until it be first presented to the Court below.
Judgment affirmed.
Reference
- Full Case Name
- John H. McBride v. Lucy B. Hartwell
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- H. brought suit against McB. to foreclose amortgage making L.’s subsequent purchasers, parties defendants. Summons served by publication on McB., and judgment by default,against him, not affecting L.’s, and case continued as against L.’s, for service, whereupon they appear by attorney to. except to the judgment against McB. Doubted whether defendants against whom no judgment is rendered, could except to the judgment against a co-defondant. Ho only could except to it., and his appearance for that purpose would cure any defect in the service by publication. Without an exception, doubted that the Supremo Court could loolc into the record. Jin affidavit by the plaintiffs attorney, that he filed a petition giving its substance, and stating that it was for the sale of lands in the county, and that defendant is a non-resident, hdd, sufficient foundation for service by publication. An order of the Clerk that defendants bo notified of the pendency of the suit, giving the title and Court, time of the filing of the petition, and its prayer, and on what founded, and the day the defendants are required to answer, signed and sealed by the clerk with the name of the plaintiff’s attorney appended, contains all the statutory requisites of a notice for pub-location of summons. Whether the petition stated sufficient facts is not a question the Supremo Court can look into until it first bo presented to the District Court. Where the record fails to show proof of publication of notice and contains no bill of exceptions, but shows judgment below; Semble, the Supreme Court cannot presume that such proof was insufficient in the Court below.