Shepard v. Kelly

Lancastee, Justice,

delivered the opinion of the Court:

The last assignment of error is first noticed in the briefs of counsel, and will, therefore, be first disposed of by this Court. It alleges the Court had no jurisdiction, under the statute, to render judgment for the debt, and foreclosure of the mortgages, because from the petition it appears the mortgages had been foreclosed at a former term of the Court, when judgment was rendered for an instalment due on them, and, therefore, there remained no mortgages now to foreclose. Admitting the facts to be correct, it is difficult to see how they affect the jurisdiction of the Court. Jurisdiction consists in authority to try the subject-matter of the suit, and over the person of the defendant. These two requisites attaching, it would be difficult, if not impracticable, successfully to assail the jurisdiction even of a court of special powers. But that the Circuit Courts of this State are courts of general original jurisdiction, will be abundantly manifest to every one who reads the 6th clause of the 5th article of our State Constitution : “ The Circuit Courts shall have original jurisdiction in all matters, civil and criminal, within this State, not otherwise excepted in this Constitution and by the 8th clause of the same article, they are invested with the original equity jurisdiction, until the General Assembly shall establish and organize a separate equity court or courts with that jurisdiction. That has not yet been done, and it is not known that the Constitution makes any other exception to the original jurisdiction of the Circuit Courts.

The Circuit Court was then a court of general original jurisdiction, and having jurisdiction of the foreclosure of mortgages, this suit was brought to foreclose the mortgages therein set forth, as well as for judgments for the sum alleged to be secured by them, as owing and due from defendant to plaintiff in the action. This was the subject-matter of the suit, and we apprehend no one will seriously deny the jurisdiction of the Circuit Courts over such a subject-matter. But' that the jurisdiction may properly attach to render judgment, it is necessary also for the Court to have jurisdiction of the party defendant. The ordinary mode to acquire this jurisdiction over the party defendant is by summons ad respondendum, admonishing him to appear in court and defend against the suit. By law this summons should be served on the defendant by the officer of the Court, at least ten days’ before the first day of the term ; yet an acknowledgement of service endorsed on the writ by the defendant, or an appearance in court and plea to the merits, or confession of judgment, will- be sufficient evidence of the court’s jurisdiction over the person of the defendant, and so, it is believed, has been the uniform practice in the courts, from the date of the act to regulate judicial proceedings.

These proceedings were instituted under the act of December 11th, 1824, before referred to, which authorizes courts of law, in addition to the power before possessed, of rendering judgment for the debt due plaintiff by defendant, to foreclose a mortgage given to secure its payment, and to issue execution as in other cases. But in this particular case, the law requires personal service of notice of the intention of the party to institute his suit, and that service of this notice shall be made by the officer appointed to serve writs issuing out of and returnable to said court, four months, when the foreclosure is to be of real property, before the term of the Court at which judgment shall be rendered. It also requires that the petition for judgment and foreclosure, together with the original mortgage, shall be liled in the office of the clerk of the Court, at least four months before the term of the Court, at which judgment of foreclosure of real estate shall or can be demanded or rendered.

These provisions are clearly intended for the benefit and protection of the defendant, and he has an undoubted right to insist upon their literal and full performance, before a valid judgment and foreclosure on a mortgage can be rendered against him, unless he thinks proper to waive them.

The former was intended, perhaps, partly to afford him time to redeem, as well as time to prepare for his defence ; the latter that he might understand and inspect the demand against him, as well as afford him time to mould that defence. If it was shown the subject matter of this suit was not comprehended by the statute of 1824, or it was doubtfully comprehended, or that a prior judgment at law had been given upon the identical demand for which this suit was instituted, according to the decisions of this Court, in 1 Flor. R., 182, the statute affording a new remedy should be rigidly construed, so as not to take jurisdiction in any doubtful case. The requirement of a statute for bringing a party defendant before the Court is never so rigidly, but only substantially observed. The act of 1828, regulating judicial proceedings, provides for issuing process at the commencement of actions at law, (different from the common law writ of capias ad respondendum,,) which, by the act, is to be served by the officer at least ten days before the first day of the term to which it is returnable. By the common law, it is required to have the body of the defendant in custody, to give the Court jurisdiction of the person; yet here a summons, regularly served, as required by the act of 1828, gives the Court jurisdiction of the person of the defendant. This act greatly modifies, in many respects, the practice as at common law, yet no one has thought or claimed that it should be construed strictly. The courts in practice haVe held, if a party acknowledges service on the back of the writ, it is good. If a party file a declaration, and the defendant plead thereto by confession of judgment, without writ issued or served, it is good. Yet the statute no where by express enactment provides for these cases, but they have been continually held to be within the reason of the act; and .this practice, upon a sound construction of the statute, it is not doubted is correct. The Court can discern no good reason why the statute ' of 1824, to regulate the foreclosure of mortgages at common law, so far as respects the mode of summoning the defendant into court, or the time of filing the petition for foreclosure, should not be subjected to the same rule of construction. “ An acknowledgement by the defendant of service of the writ, and a waiver of a particular entry required in the case, is sufficient to give jurisdiction of the person, and every thing consistent with the record will be intended to sustain the judgment.” 9th Porter’s R., 291.

The reasons assigned in this case against the jurisdiction of the 'Court, appear rather to be such as might have been made in the Court below to the count or petition, and to the writ. But, according to logical reasoning and logical practice, they were waived by a consent of judgment. Had no written acknowledgement or consent been executed, the Court certainly would not have proceeded to judgment or foreclosure until notice had been served on defendant, and petition filed according to the requirements of the statute — assuming that these objections could be only properly addressed to the ■Court, and the writ would be an admission of the jurisdiction of the Court.

But it is urged that petitioner showed by his petition he had no existing mortgage to secure his debt at the time of filing it, and, therefore, the Court had no jurisdiction. This objection, it seems to the Court, would best be made by way of plea in bar to the action, and that plea would admit the jurisdiction of the Court. Yet we cannot see how in any shape it should avail the defendant, who, upon the back of the very petition in which this allegation is contained, confesses judgment for the sum therein .alleged to be due, and agrees that a decree of foreclosure shall be rendered on the mortgages therein set forth and sought to be foreclosed, at the Spring Term of the Court in lSd-?. Is it asked of this Court to decide there was no existing mortgage in favor of petitioner against the defendant, Shepard, when he, Shepard, under his hand and seal, agrees there is, and that it may be foreclosed, and this agreement, too, .made, in consideration of a stay of execution 1

The rule of law, that where the Court has not jurisdiction of the ^subject-matter of a suit, consent, cannot give it jurisdiction, is, without doubt, correct; but as to the person of the defendant, the! formal service of the process, or the time of filing the declaration or petition, though necessary steps, are rendered unnecessary, if the defendant appears and pleads issuably, or confesses judgment — and having done so, he ought not afterwards to be permitted to take advantage of irregularities in those respects. We think, therefore, the Court had jurisdiction of the suit, by having jurisdiction both of the subject matter of the suit, and by the defendant’s acknowledgement of due service of process, of the filing the petition on the first day of the term, and consenting that judgment might be rendered at the said term and foreclosure decreed, with a stay of execution, &c. This-assignment of errors is, therefore, overruled.

The first error assigned, and next to be considered is this : The-agreement to confess judgment is void under the statute, which enacts, ‘ All powers of attorney for confessing or suffering judgment to-pass by default or otherwise, and all general releases of error made or to be made by any person or persons whatsoever within this State before action brought, shall be, and are hereby declared to be, abso--lutely null and void.’ Thom. D., 350. Upon this assignment oferror, it will sufficiently express the views of the Court to say, the agreement of the defendant, under his hand and seal to confess judgment, is not a power of attorney to confess judgment, and is not within the prohibition of the statute. Neither does it appear from a careful examination of that agreement, written on the back of the plaintiff’s petition, that it was made before action brought. They appear rather to have-been done simultaneously, and if necessary to give effect to an agreement made on a valuable consideration, to wit: a delay of payment*. The Court will understand it to be admitted that notice of the intention of the plaintiff to bring his suit (which notice is the institution, of the suit) was given before the defendant, Shepard, signed any agreement on the back of the petition. .We think this assignment', of error should be overruled.

The second error assigned, is, “ there is error in giving one foreclosure on two mortgages.”

The debt, which the two mortgages were given to secure, was one debt, due from the defendant, Shepard, to the plaintiff, Kelly. The-last mortgage was cumulative or additional security on the first, and-both were but security for one debt. If the debt had been paid, which they had been made to secure, that act would have discharged both mortgages; if it became neces.sary to push that debt to judgment, no good reason is perceived why the equity of redemption, should^ not be foreclosed on all the property mortgaged to secure its payment ; and this, we think, within the equity of the statute, the Court had power to do. This assignment of error is, therefore, we think, not well taken, and is overruled.

Third error assigned, “ there is error in the original judgment, because the property foreclosed is not mentioned.”

So much of the original decree as is material in this assignment of error, is in these words : “ And it is further adjudged, ordered and decreed, that the said John S. Shepard, mortgagor, - and all persons claiming or to claim by, through, or under him, shall be, and they are hereby forever foreclosed and barred of, and from all right and equity of redemption of or in the property mortgaged by the said deeds of mortgage in said petition set forth, and therewith exhibited, and every part thereof, and that execution issue according to the statute in such case made and provided, after the first day of February, Anno Domini, one thousand eight hundred and forty eight, until which date execution will be stayed according to the agreement before stated.” It is perceived that, by this original decree, the equity of re* demption of or in the property mortgaged by the said deeds of mortgage exhibited with the petition and therein set forth, is foreclosed.' Id cerium, est quod cerium reddi potest. And so far as can be collected from the forms in the Courts of Chancery in England, it is believed no more specific or certain description of the property is contained in the decree of foreclosure than the mortgaged premises in question. It is argued if such a decree be good in England, it ought not to prevail here, because the exhibits are not recorded after final judgment. By legal intendment, the files of the Court are as secure as the records, and if this were not so, the law requires mort- • gages to be recorded when or soon after they are executed. This, by the petition and exhibits, appears to have been done, and admitting the files of the Court should be lost or destroyed, it is fairly presumable, the record of these mortgages is as safe as the record of the judgment. We think the property, intended to be foreclosed, is sufficiently designated by reference to the mortgages in which it is specified, and a specific statement of it in the decree of foreclosure, is immaterial and unnecessary. The third error assigned is therefore, in our opinion, not well grounded, and is overruled.

The fourth error is, “ There is error in the judgment as amended, because it awards execution against specific property.”

The 8th sec. of the act of 1824, Thompson’s Digest, 877, is in the words following : “ The judgment of the Court on the foreclosure o, a mortgage, shall in all cases he entered up and filed, and execution shall issue thereon as in other cases.” By the law applicable to other cases, execution goes against the lands and tenements, goods and chattels, of the defendant in execution. The amended decree, after specifying the mortgaged property, adds, “ and that said petitioner have execution against said mortgaged property, according to the statute in such- case made and provided.” It is contended if this be error, it is in favor of the plaintiif in error, and unless he is injured by it, he cannot take advantage of it. Without contravening the force of this objection, or without stopping to enquire narrowly, whether a party might not be injured by subjecting a specific fund (if a favorite fund) to execution, when the law requires that execution shall be against the lands and tenements, goods and chattels of the defendant, upon an examination of the original judgment and decree entered in this cause, it seems to the Court that said judgment and decree is good and valid in law; and that the amended judgment and decree entered on Friday, the 7th day of April, A. D., 1848, is, for the reasons set forth in the fourth assignment of errors, erroneous : wherefore, the said assignment of error, so far as applicable to said amended decree, is allowed and sustained.

The fifth, sixth and seventh errors assigned, having reference to the judgment as amended, that amended judgment being to be reversed and vacated, it is deemed unnecessary to examine.

It is, therefore, ordered, adjudged and decreed that the original judgment and decree of foreclosure, rendered in this cause at the Spring Term, eighteen hundred and forty-seven, be in all things affirmed, and that execution issue thereon according to law; and that the amended decree of foreclosure, rendered nunc fro tunc in said cause on the 7th day of April, A. D., 1848, be set aside and reversed, and that the appellant recover his costs, &c.