Thomas v. Bailey

7 Blackf. 149, 1844 Ind. LEXIS 68

• Court: Indiana Supreme Court
• Decided: June 5, 1844
• Status: Published

Opinion

Dewey, J.

— This was a bill in equity to foreclose a mortgage. The defendant made default, and the bill was taken as confessed. Final decree for the complainant according to the prayer of the bill.

It is contended the decree is erroneous, because the defendant was not legally notified of the pendency of the bill. The notice, which was given in a newspaper by the clerk of the Court on affidavit of non-residence filed in vacation, stated the names of the parties, the nature of the bill, the time of filing it, the filing of the affidavit, and required the defendant to appear before the Circuit Court of the proper county “ on the first day of its next term, and plead, &c., on or before the calling of the cause,” &c. The objection urged against the notice is, that it omits to state the time and place of holding the Court at which the defendant was required to appear. We do not think the objection valid. The statute, prescribing the mode of giving notice to non-resident defendants in bills of equity of the pendency of the suit, was complied with, so far as the time and place of appearance are concerned, by notifying the defendant to appear on the- first day of the Circuit Court at its next term. R. S. 1838, p. 444.

G. Taylor and J. H. Bradley, for the plaintiff. R. Jones, for the defendant.

Per Curiam.

— The decree is affirmed with costs.