Choate v. Sutton

Dat, J. The action of the court is erroneous. The petition contains the basis of three distinct claims against the [310] defendants, Bell & Co.; first, a correction of the mortgage so that it shall secure $180 instead of $100; second, a foreclosure of the mortgage as against them, and a barring of their equity of redemption; third, a personal judgment against them for the amount' secured. Section 2822 of the Revision provides that: “ The plaintiff may notify either of the defendants that no personal claim is made against him, in which case a copy of that notice must accompany the return. If, after such notice and return, such defendant unreasonably defend, he must pay costs to plaintiff.” Pursuant to this section defendants were notified that no personal claim was made against them. ‘ As to this portion of the petition there was no necessity for defense. But they had a light to controvert the claim that •there was a mistake in the mortgage, and also to show, if they could, that the mortgage was not recorded, and that they purchased without notice of it. And as to these claims they were entitled to enter on appearance and ask time to answer. Section 2810 of the Revision provides that “ if the petition contains more than one cause of action, a mere appearance shall not be deemed an appearance to any cause except such as the defendant shall have had due notice of.” It cannot be claimed that notice to defendants, Bell & Co., that no personal claim is made against them further than to enforce the mortgage on the land for the amount claimed, is notice to them that a personal judgment is asked for the amount secured by the mortgage. If, then, they were not notified of this claim against them for personal judgment, they have, as to this claim of the petition, made no appearance, and as to it, judgment has been entered against them without notice, and without voluntary appearance. The defendants have a right to have it set aside, and to be admitted to defend. Reversed.