Sargeant v. Mead

If the plaintiff was served with the summons and complaint in the action brought by Mead to foreclose the Dumond mortgage, then, plainly, she cannot maintain this action. That complaint set forth the clause in the deed to Marguerite Yenne which stated the Dumond mortgage, and by which she assumed it. That complaint also averred the actual knowledge by the present plaintiff, Sargeant, at the time of taking her mortgage, of the existence of the Dumond mortgage. That complaint demanded that the Dumond mortgage should be adjudged prior in lien to that of the present plaintiff. Thus the only question is whether the present plaintiff was in fact served with the summons and complaint in the Mead action. Whether the certificate was or was not regularly made, being signed by Thorn in the name of the sheriff, is not the real question. If Mrs. Sargeant was in'fact served, that is enough. On that point we have first the officer’s certificate, presumed to be true. Hext the positive testimony of Rosengarden that he served the summons and complaint on Mrs. Sargeant. To this is opposed that of an interested party. We think the decision of the learned justice on this question of fact was correct. Judgment affirmed, with costs.