Fall v. Evans

20 Ind. 210

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Worden, J.

Falls filed his petition in the Court below, setting up, in substance, that in 1858 one McClasen owned certain real estate described in the petition, which he mortgaged to one Jenhinson to secure the payment of certain promissory notes therein described; that in March, 1858, the appellee, Evans, being, or claiming to be, the owner of the notes and'mortgage, instituted a suit in that Comt to foreclose the same, and in October of that year obtained a judgment of foreclosure against the plaintiff, who was at that time the owner of the equity of redemption in said real estate, and against the said McClasen; that the judgment was taken by default against the petitioner and without service of process upon him, and that he has a valid defence to a part of the notes. He prayed to have the judgment against him set aside, and that he might be permitted to defend.

L. M. Ninde and P. S. Taylor, for the appellant.

Demurrer to the petition sustained, and final judgment for' the defendants.

Falls, having been made a defendant to the foreclosure suit,, he should have been properly notified of its pendency, otherwise no valid judgment could be rendered against him. He being the owner of the equity of redemption, was entitled to set up some, if not all, the matters of defence that could have been set up by McClasen, and the judgment having been taken against him without process, it seems to us that he was unquestionably entitled to have it set aside as to him, and hisdefence, if he had any, heard.

Per Curiam.

The judgment below is reversed with costs, and the cause remanded.