Howe v. McBride

Indiana Supreme Court

Howe v. McBride

17 Ind. 501, 1861 Ind. LEXIS 499

DecidedDecember 14, 1861

StatusPublished

This text of 17 Ind. 501 (Howe v. McBride) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howe v. McBride, 17 Ind. 501, 1861 Ind. LEXIS 499 (Ind. 1861).

Pincite

Opinion

Perkins, J.

Ilowe gave McBride a note and mortgage. When they became due, Howe failed to pay and McBride proceeded to foreclose. Due notice of the foreclosure suit was served upon Howe, but he failed to attend Court to see that the proceedings were correct, and the proper judgment rendered. He let judgment go by default. The judgment was, to make the money by sale of the property mortgaged, as far as it would go, and to collect the balance of the goods and chattels, <fcc. of the defendant.

J. 3. Frazer, for the appellant.

Ilowe thinks the latter part of the judgment is wrong, not because unauthorized by the note and mortgage, but because the mortgage should have contained a stipulation that there should be no remedy beyond the sale of the property. He says there was a mistake in the mortgage, but that he never suspected it till he learned of this judgment in personam against him; and he applied after the term to have it set aside. Now, it may be asked of Mr. Ilowe, he may ask himself the question, why was Mr. McBride required to go into Court and give Mr. Ilowe notice to meet him there to examine this matter, before he could proceed to enforce collection of his note and mortgage by sale ? It was for the very purpose of giving Mr. Howe an opportunity to see if there was any mistake, and if so, to have it corrected. The Court is not bound to give him another opportunity, since he voluntarily disregarded that furnished him at the proper time. There is no case made of excusable negligence.

Per Ouriam. — The judgment is affirmed, with costs.

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Perkins, J.

Ilowe gave McBride a note and mortgage. When they became due, Howe failed to pay and McBride proceeded to foreclose. Due notice of the foreclosure suit was served upon Howe, but he failed to attend Court to see that the proceedings were correct, and the proper judgment rendered. He let judgment go by default. The judgment was, to make the money by sale of the property mortgaged, as far as it would go, and to collect the balance of the goods and chattels, <fcc. of the defendant.

J. 3. Frazer, for the appellant.

Ilowe thinks the latter part of the judgment is wrong, not because unauthorized by the note and mortgage, but because the mortgage should have contained a stipulation that there should be no remedy beyond the sale of the property. He says there was a mistake in the mortgage, but that he never suspected it till he learned of this judgment in personam against him; and he applied after the term to have it set aside. Now, it may be asked of Mr. Ilowe, he may ask himself the question, why was Mr. McBride required to go into Court and give Mr. Ilowe notice to meet him there to examine this matter, before he could proceed to enforce collection of his note and mortgage by sale ? It was for the very purpose of giving Mr. Howe an opportunity to see if there was any mistake, and if so, to have it corrected. The Court is not bound to give him another opportunity, since he voluntarily disregarded that furnished him at the proper time. There is no case made of excusable negligence.

Per Ouriam. — The judgment is affirmed, with costs.

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Bluebook (online)

17 Ind. 501, 1861 Ind. LEXIS 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-mcbride-ind-1861.