Reilly v. Hart ( 1890 )

Dykman, J.

This is a submission without action of a controversy which has arisen between these parties respecting the obligation of the defendant to perform a contract which he made with the plaintiff for the purchase of real property. In 1874 the premises in question were owned by Bartholomew L. Lynch, who resided in the city of New Orleans; and there was then a mortgage upon the same, held by Caleb Cogswell. In the latter part of that year, Cogswell commenced an action for the foreclosure of his mortgage, and procured an order for the service of the summons upon Lynch by publication. The publication of the summons was commenced, and was about half completed,—that is, about one-half of the time during which the summons was to be published' under the order had expired,—when the plaintiff in the action died. The publication was continued without regard to the plaintiff’s death, and the action was subsequently revived in the name of the executrix of the mortgagor, and the suit was prosecuted to judgment and sale; and the plaintiff holds under that title.

Did such publication of the summons subsequent to the death of the plaintiff in the action constitute a sufficient service on the defendant Lynch, and give the court jurisdiction to make the judgment of foreclosure against him? If it did, then the title of the plaintiff is merchantable, and the defendant, must complete his purchase, and perform his contract. If such service was. incomplete and insufficient, then the defendant must have judgment for the cancellation of his contract, and the return to him of the sum of $300 which he has paid on the contract. The service was plainly incomplete at the time of the death of the plaintiff, and therefore no action had been commenced, and none was continued. The defendant should therefore have judgment, without costs.