Dykes v. McClung

Jackson, Chief Justice. [Mrs. Bettie McOlung filed her petition to set aside a judgment against her in favor of W. M. Dykes, based on the foreclosure of a mortgage on certain realty. Two grounds for the motion were stated: [383] (1.) Because the only service of the rule nisi to foreclose the mortgage was by leaving a copy at the residence of the defendant, as appeared from the entry of the sheriff. (2.) Because the record showed on its face that the judgment against her was illegal. The record of the foreclosure showed that J. II. McClung, the husband of the movant, made a note to J. F. Lewis & Son, with Dykes as security; that to secure the latter against loss, McClung and his wife made the mortgage to him; that he was compelled to pay the debt, and thereupon proceeded to foreclose the mortgage against the husband and wife; that service was made by the sheriff by leaving a copy at the residence of the defendants; and that no cause being shown against the foreclosure, a rule absolute was granted. The court granted the motion and set aside the judgment as to the movant. Respondent excepted.]