Cole v. Allen

Downey, J. Action by the appellee against the appellants to foreclose a mortgage, and judgment by default for the plaintiff in rmn only. The question presented arose out of a motion in special term of the superior court to set aside the default and judgment for want of legal summons and proper service thereof, the motion having been overruled in special term and this action affirmed in the general term. The summons, it is stated, was -issued to the sheriff of Marion county, Indiana, and served personally on the defendants, in Boston, in the State of Massachusetts. The record shows that the summons was served on the 27th day of January,' -1874, and the judgment rendered on the 7th day of March, 1874. There is nothing in the record to show when the summons required the defendants to appear. The summons is not in the record. It should appear in the record, when the judgment is by default. Miles v. Buchanan, 36 Ind. 490; Cochnower v. Cochnower, 27 Ind. 253; The New Albany, etc., R. R. Co. v. Welsh, 9 Ind. 479; 2 G. & H. 273, sec. 559. The judgment is reversed, with costs, and the cause [123] remanded to the general term, with instructions to reverse the judgment at special term, and remand the cause for further proceedings.