O'Hara v. Brophy

By the court, Scrugham, Justice. Actions for the strict foreclosure of mortgages are not among those mentioned in section 304 of the Code, in which costs are allowed of course, but their allowance or refusal in such actions is in the discretion of the court. (Code, § 306.) The provision that a defendant upon whom the notice prescribed by section 131 is served, shall pay costs if he unreasonably defend the action, does not deprive the court of the power in equity cases to award costs for unreasonably defending against defendants upon whom a copy of the complaint, but no such notice, has been served. It is not necessary to the commencement of any action that a copy of the complaint be served upon the defendant; he is brought into court by the summons alone. In equity cases this gives him no information of the cause of action or of the nature of the relief sought against him; a copy of the complaint would afford it, but as the complaint may be, and in such cases generally is, voluminous, the notice is provided as a short substitute calculated to convey to the defendant all the information necessary to acquaint him with the nature and object of the action, and of the extent to which his rights will be affected by it, and upon which a defendant, against whom no personal claim is made, may safely determine whether it will be necessary for him to take any proceedings in the action. The complaint furnishes this information more fully than the notice, which is nothing more than an abstract of it, and it is not necessary to serve the notice in case a copy of the complaint is served with the summons; for it would certainly be as improper for a defendant in that case unrea [384] sonably to defend the action as it would be if, instead of a copy of the complaint, a notice of the object of the action had been served upon him, and the court, exercising its discretion in the awarding of costs, would doubtless award them against him in the one case as freely as in the other. The justice therefore was right in refusing to charge that O’Hara and McLaughlin, as defendants in the action for strict foreclosuse, had a right to defend it without any personal liability to costs. No costs would have been awarded against the present plaintiff in the foreclosure suit if the answer had not been interposed, and the j ury have found that the answer was put in by the defendant as attorney for the plaintiff, without authority from him. Upon this question there was conflicting evidence; and in passing upon the verdict of a jury in a justice’s court, the question with us is not whether the evidence would, lead us to the same conclusion, but only whether there is any evidence to sustain the finding of the jury, and if so, whether the evidence against it is so preponderant as to create the conviction that it must have proceeded from passion, prejudice, corruption or palpable mistake. As there is no such extreme preponderance in this case, the verdict must be sustained, and the judgment of the county court affirming the justice’s judgment should be affirmed.