Jones v. Gilman

By the Court, Cole, J. We have no doubt that tbe circuit court bad power to set aside tbe discontinuance which had been entered in this case under a misapprehension. That order was inadvertently made undoubtedly, and tbe court properly corrected the mistake which had been committed. Tbe cause was re-instated, it appears, upon motion, and upon due notice to tbe opposite party, and we can see no objection to tbe practice here adopted. For certainly, if a cause happens to be discontinued through a mistake of tbe court or counsel, as to tbe service of process or tbe state of tbe pleadings, the error ought not to be irreparable. Through somebody’s blundering, it seems, tbe order of discontinuance was entered, when tbe pleadings were all in and tbe issues made up, but tbe next court day tbe order was set aside. Tbe court undoubtedly properly vacated tbe order of discontinuance. The judgment of foreclosure is however for too large an [452] amount. The respondent admitted in his reply the justness of the counter-claim, and that $104 54 had been paid on the note and mortgage. This should obviously have been deducted from the amount of the mortgage debt. The counsel for the respondent intimated that this error could not be reached on this appeal, because there was a general exception taken to the judgment. This, however, is a mistake. The error appears upon the face of the pleadings themselves. The respondent has taken a judgment for $104 which, he admits, has been paid. It is doubtful whether any exception would be necessary to enable us to review such an error obvious upon the very pleadings in the case. Suppose a party files a complaint, claiming that five hundred dollars are due him upon a note and mortgage therein set forth, and then takes judgment for a thousand dollars; must the aggrieved party file his exceptions to the judgment in order to enable this court to review and correct such a palpable error upon the record ? We think not. But however this may be, here was a general exception, and this surely was sufficient to save the point. There is another error in the judgment. It orders the mortgaged premises to be sold by the referee, and absolutely bars and forecloses all the interest and equity of redemption of the appellant in the premises. The mortgage was executed after chapter 195, Laws of 1859, went into operation. That law gave the appellant one year after the sale to redeem the property sold. The judgment should conform to the statute, and contain a clause giving the appellant this right of redemption within a year from the sale, and not attempt to bar that right absolutely. We therefore think the judgment of the circuit court should be modified, by deducting from the amount found-due on the note and mortgage the 'sum the respondent admits has been paid thereon, and also by inserting a provision giving the appellant, &c., the right to redeem within a year from the sale, in conformity to the- law of 1859, with costs of this'court to the appellant. Cause remanded for further proceedings in accordance with this decision.