Beverly v. Fairchild

The opinion of the court was delivered by Horton, C. J.: The mortgage which was foreclosed was dated the 18th of March, 1887. J. L. Beverly purchased the premises mortgaged on the 25th of April, 1887, and assumed the payment of the mortgage. He was therefore the owner of the premises subject to the mortgage lien, and entitled to the possession of the same. When the action was commenced by Wm. Fairchild and John Higginbotham, on the 22d day of September, 1888, to foreclose the mortgage and obtain personal judgments, Beverly was a necessary party defendant in [291] the foreclosure proceedings. It was decided by this court long ago that, in an action to recover upon a note and foreclose a mortgage given to secure the same, no indorsement was required on the summons, it not being an action for the recovery of money only. (Civil Code, § 59; George v. Hatton, 2 Kas. 333; Weaver v. Gardner, 14 id. 347.) Therefore, we think in this case, considering the action and the judgment rendered, that the failure to indorse the summons did not make the judgment void. (Simpson v. Rice, 43 Kas. 22; Friend v. Green, 43 id. 167.) If the plaintiffs in the original action had wholly disregarded the mortgage, and brought their action against Beverly only upon his promise to pay the notes secured by the mortgage, the action might then have been considered one for money only, and in such a case an indorsement of the summons would have been necessary; but such was not the action which was commenced. The judgment of the district court will be affirmed. All the Justices concurring.