Shaw v. National State Bank

Day, J. 1. jurisdiction: notice. I. Appellant insists that the foreclosure decree was entered without jurisdiction, in that the plaintiff in this action, defendant in the foreclosure proceeding, wag n0^. serve(j notice, and did not enter any ajipearance. Section 2626 of the Code provides : “The mode of appearance may be — First, by delivering to the plaintiff or the clerk of the court a memorandum in writing to the effect that defendant appeared, signed either by the defendant in person, or his attorney, dated the day of its delivery, and to be filed in the case.” Notwithstanding the elaborate argument of appellant’s attorneys, we feel constrained to hold that the filing in the ease of the paper set out above constituted an appearance in the case, and obviated the necessity for any service of notice. It seems to us, beyond all reasonable question, that it complies in all respects with the provisions of the statute. It was filed in the case, and, therefore, must have been delivered to the plaintiff or the clerk of the court; at least such delivery, in the absence of proof to the contrary, must be presumed. The presumption is, as appellant concedes, that it was delivered on the day it bears date. It is signed by the plaintiff, who was a defendant in that action. It states that the defendants “ hereby enter our voluntary appearance in said action. ” It is difficult to see how it could be more explicit in its terms, or could more fully comply with the provisions of the statute. Without answering seriatim or at length the objections made thereto by appellant’s counsel, we deem it sufficient to say that we regard it as in all respects sufficient to give the court jurisdiction of the persons of the defendants. [182] 2_._. decree. II. This paper was filed in the case on the 19th day of March, 1815, and on the same day the decree was entered. The appellant insists that the court should not have entered a decree upon the day of the appearance, but should have fixed some day on which defendants should plead. This position, we think, is untenable. From the fact of filing this paper and making no personal appearance, the court might well conclude that the defendants did not desire to make any defense. If they wanted time to plead they should have appeared personally, or by attorney, and asked it. Besides, if it should even be conceded that the court should have fixed a time for defendants to plead, the neglect to do so would be at the most a mere irregularity or error. It would not affect the jurisdiction of the court to enter the decree. III. It is claimed that the allegations and prayer of the petition do not authorize the decree which was rendered in the foreclosure case. The petition alleges that the claim made by plaintiff is superior to any and all claims of the defendants, and prays that the mortgaged premises may be sold to pay the amount due, that defendants’ rights be cut off, and for general relief. The allegations and prayer of the petition' are broad enough, we think, to authorize the decree rendered in the case. There are other considerations which would lead to a like result; but, as the foregoing view is decisive of the case, and is satisfactory to us, we deem it unnecessary to present other views leading to the same conclusion. Affirmed.