Boynton v. Sisson

Oeton, J. This is an action to foreclose two mortgages on the same premises — one given by the defendant and wife to the plaintiff for $450, and the other given to one Elizabeth S. Jones by the same parties, and by her assigned to the plaintiff, for $500; and in the first there was stipulated to bo paid an attorney’s fee of $25, and in the other an attorney’s fee of $50. In the judgment of foreclosure of the mortgages, otherwise regular, there is in' form a judgment at common law or in personam against the defendant, instead of the usual determination of the sum due; and this is assigned for error. This judgment in personam is followed by the usual order of the sale of the mortgaged premises, and for judgment for deficiency on the confirmation of the report of sale. Construed together, the effect of this judgment in form was the determination or finding of the amount due, and it could have no other effect. Forms must give way to substance, and as a judgment it is void, but as a finding of the amount due it is substantially proper; and therefore it is no error for which the judgment of foreclosure ought to be reversed. The appeal is from the whole judgment, and if the judgment in personam complained of was error, it could not in any view affect the judgment of foreclosure. To reach such an error, it would seem that the judgment in personam complained of as part of the judgment of foreclosure should have been exclusively appealed from as the only part of the judgment of foreclosure, or as a separate judgment in personam, complained of. It would certainly have the effect of a finding of the amount due, and this would render the judgment [403] of foreclosure proper and valid, and such, an informality could not possibly invalidate the judgment of foreclosure. In any view, the error is not well assigned. In the judgment of foreclosure of both mortgages there is an allowance of $75 attorney fee; and this is assigned for error, insisting that the complaint states only one fee of $50. But on introducing the two mortgages, the two attorney fees, one of $25 and the other of $50, appeared to have been stipulated. The fee allowed of $75 was therefore found to have been stipulated, and the complaint in respect thereto, after judgment, should stand as amended to conform to the facts proved. Sec. 2830, R. S. There appears to be no eri^or in the record for which the judgment ought to be reversed. By the Court.— The judgment of the circuit court is affirmed.