Reed, C. J. i appeal- ' notice :^defor Rearing: practice. I. The notice of appeal was served on the sixth day of January, 1888, and recited that the cause would be for hearing at the June. term following. The statute in force at that time provided that terms of this court should be held in March, June, October and December of each year. That statute was subsequently repealed, and it was provided that the terms should be held in January, May and October. Chapter 34, Laws 22d Gren. Assem.
Appellee filed a motion to dismiss the appeal on the ground that more than thirty days elapsed between the service of the notice and the next term of the court as fixed by law, while the appeal was to the term following that. The motion will be overruled. It is true appellant could not carry the case over to the June term simply by declaring in the notice of appeal that it would be for hearing at that term.
When the. appeal was perfected, this court acquired jurisdiction of it, and the statute fixed the time at which it could be heard. All causes which have been appealed more than thirty days before a term of this court are for hearing at that term, unless continued by consent or for cause (Code, secs. 3180-3182), and an appellant cannot change the rule in that respect by a mere declaration in his notice of appeal.
The recitation in appellants’ notice that the case would be for hearing at the June term did not affect either the appeal, or the time at which it could be heard, but was mere surplusage. There was nothing to prevent the appellee from filing the transcript at the next term after the service, and moving for the affirmance of the judgment, or the dismissal of the appeal, under the statute and rulés of the court.
That course, however, was not taken, but the record was subsequently filed by appellant, and the cause must now be disposed of on its merits. II. On its face the judgment as modified is erroneous. By the terms of the' mortgage, lot 9 was pledged as security for but one thousand dollars of the indebtedness, whereas by the judgment it is directed to be sold 386 for the satisfaction of any balance which may remain after the other property has been exhausted.
If the proceeds derived from the sale of the other property should satisfy but three thousand dollars of the indebtedness, and it should sell for two thousand dollars, the whole of that amount would, under 'the judgment, be applied upon the indebtedness. It is clear, therefore, that the judgment ought to be modified if the state of the case is such that that can be done. 2. jUDGMEnt notwaxranttion F remedy of defendant.
It was contended, however, that, as appellant showed no excuse for his default, he could neither move for the modification- of the judgment, nor have it reviewed on appeal. That position would doubtless be correct, if appellant were see^jng £0 interpose a defense, or to secure the modification of the decree upon some ground not shown by the record. But he is not attempting to ’ do that. The facts upon which he bases his claim for relief are all shown by plaintiff’s petition.
The mortgage was attached as an exhibit, and the fact that appellant was a subsequent purchaser was shown by proper averment. The error in the judgment consists in the fact that plaintiff is awarded relief to which he did not show himself entitled by the allegations of his petition and which he did not demand.
Upon the allegations of the petition, he was entitled to judgment for the sale of the property purchased by -the appellant, for the satisfaction of one thousand dollars of the indebtedness, provided that amount remained unsatisfied after the other property was exhausted, and, if' not, for the remainder less than that, whatever it might be. Against that claim appellant had no defense, and consequently he had no occasion to make any appearance.
On that state of facts it is clear, we think, that he was entitled to appear aiter the judgment, and move for its modification. If that were not- true, it would follow that, although he, had no defense against the claim, as made in the petition, he is without remedy against the judgment erroneously rendered upon it, under which his 387 property may be appropriated for the satisfaction of a portion of a debt which was not a lien upon it when he purchased.
That such a result would be inequitable is manifest; and it is equally clear, we think, that a party cannot be denied relief against a judgment which would lead to such' results, and which is not warranted by either the averments or the prayer of the petition.
The judgment will, therefore, be reversed, and a new judgment' will be entered, either in this or the district court, as the parties may elect, granting the relief to which plaintiff, on the allegations of his petition,' is entitled. [Filed, February 6, 1890.] Reversed.
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