PRACTICE IN FORECLOSURE.

[Putnam Circuit Court,

April Term, 1888.]

Moore, Seney and Beer, JJ.

#### JONATHAN THATCHER ET AL. v. JOSHUA M. DICKINSON ET AL.

1. When Foreclosure Decree Cannot be Modified.

The original decree was.rendered at the September term, 1885, of the common pleas court. At the September term, 1886, this decree was modified, and then vacated at the same term, and after it was vacated the original decree was again modified. Held, that the court had no power to modify the decree after the term, except in accordance with the provisions of secs. 5354 *et*seq., Rev. Stat., which provide how and on what grounds an order can- be vacated after the term.

8. Personal Judgment Upon Cross Petition, Without Summons.

A personal judgment can not be rendered upon a cross-petition without a summons issuing thereon when the defendant is in default for answer to the original petition.

3. Sale Should Not be Ordered Subject to an Undetermined Lien.

In a suit to foreclose a mortgage and to marshall liens, an order to sell can not be made subject to a certain undetermined indebtedness set forth in the answer and cross-petition of a defendant lien-holder.

4. Appraisement Subject to Undetermined Indebtedness Not Authorized.

Under the statute the appraisers are sworn to appraise the property at its cash value.

*83A court is. not authorized in such a suit, to order an appraisement of the property “subject to a certain undetermined indebtedness,” and an appraisement in accordance with such an order is irregular.

5. Defendant Lienholder Not to be Dismissed.

In such an action the court should see to it that all lienholders and'parties interested ■ should be made parties, and it is error in the court to dismiss, without prejudice, a defendant lienholder, and order a sale of the property subject to his undetermined lien.

6. Taxation of Costs.

Costs, on reversal, may be charged against one defendant in error.

Error to the Court of Common Pleas of Putnam county.

Seney, J.

One of the defendants in error, George ±1. Robbins, brought an action in the court below against the plaintiffs in error, Jonathan Thatcher and Leah A. Thatcher, upon a promissory note, secured by mortgage upon the undivided 2-26ths part of certain premises described in his petition, alleging that the other defendants in error claimed some lien or estate in the same premises; praying for a personal judgment upon his note, foreclosure of his mortgage, and that the liens might be marshalled and priorities established.

The defendant in error, Joshua M. Dickinson, filed an answer and cross-petition setting out a promissory note, executed by Jonathan Thatcher and secured by the same mortgage described in the petition, and praying for a foreclosure of the mortgage; he also filed a second answer and cross-petition, averring that since the commencement of the action he had purchased of the plaintiff, Robbins, the note upon which Robbins’ action was founded, praying for judgment upon the note thus purchased of Robbins, and in addition praying for judgment upon the note set' out in his first answer; also for a foreclosure of his mortgage.

The defendants, in error, Marquis & Kennedy, filed an answer and cross-petition, setting forth a mortgage executed by the plaintiffs in error, covering the entire lot or premises upon which the plaintiff had only a lien upon,the undivided 2-26ths part.

The questions made in this court render it unnecessary to refer to the other pleadings in the case. The plaintiffs in error were duly served with summons issued ttpon the petition of plaintiff, and no other summons was issued in the action.

The plaintiffs in error failed to answer and were in default.

Upon this state of the pleadings, the cause was heard upon the pleadings and evidence at the September term, 1885, of the court of common pleas of this county, and that court made a finding in favor of Dickinson against the plaintiffs in error for the amount of the note set forth in Robbins’ petition and also the amount of the note set forth in Dickinson’s cross-petition, and rendered a personal judgment for the same; also foreclosing the mortgage and ordering the premises described in the petition, being the undivided 2-26th part of a certain lot, to be appraised, advertised and sold according to law, subject to the 2-26th part of a certain indebtedness set forth in the answer and cross-petition of Marquis & Kennedy.

In the same decree is a finding of the amount due Marquis & Kennedy upon their mortgage, and declaring it the first and best lien upon the premises.

At the April term, in 1886, an order was made, setting aside the appraisement made under the former order of the court.

At the September term, 1886, another order was made setting aside another appraisement made under the former order of the court, and in addition thej*eto modifying the original decree; at the same term another order was made vacating this modification made at this term, and .another decree rendered in favor of *84Marquis & 'Kennedy upon the same cause of action alleged in their answer and cross-petition, and ordering the premises sold, subject to the last decree rendered in favor of Marquis & Kennedy.

At the April term, 1887, an order was made, setting aside the appraisement made under the order made at the September term, 1886, and under this order the premises had been three times appraised and twice advertised and offered for sale and not sold for want of bidders, and the court fixed the price at which the property should be sold at' $900, subject to the indebtedness on said entire property, and ordered the same sold. At the same term, 1887, the premises were ordered sold at not less than $100, subject to the same indebtedness.

Under this last order the property was sold to the defendant in error, J oshua M. Dickinson, and at the same term the sale was confirmed and deed ordered.

This is the state of the record in this case. The plaintiffs in error claim that each and every order is erroneous, and seek by a petition in error in this court to reverse them. They present several questions — and some of them several questions in one. Each branch thereof I will notice separately. ' ■

First — The first and original decree was rendered at the September term, 1885, of the common pleas court. At the September term, 1886, this decree was modified, and then vacated at the same term. Of course, this action of the court, if error, did not prejudice any one; but after it was vacated the original decree was again modified. Has the court the power to thus modify a decree after term?

Section 5354 Rev. Stat., provides how an order may be vacated, and upon what grounds, after term, and reads as follows:

Section 5354. A court of common pleas, or a superior or district court, may vacate or modify its own judgment or order, after the term at which the same was made—

1. By granting a new trial for the cause, within the time and in the manner provided in section fifty-three hundred and forty-three (fifty-three hundred and nine.)

*2.*By a new trial granted in proceedings against defendants, constructively summoned, as provided in section five thousand and forty-eight.

3. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.

4. By fraud practiced by the successful party in obtaining a judgment or order.

5. For erroneous proceedings against an infant, married or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings.

6. For the death of one of the parties before the judgment in the action.

7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending.

8. For errors in a judgment, shown by an infant in twelve months after arriving at full age, as described in section fifty-three hundred and thirty.

9. For taking judgments upon warrants of attorney for more than was due the plaintiff, when the defendant was not summoned, or otherwise legally notified of the time and place of taking such judgment.

" 10. When such judgment or order was obtained, in whole or in a material part, by false testimony on the part of the successful party, or any witness in his behalf, which ordinary prudence could not have anticipated or guarded against, and the guilty party has been convicted. [74 v. 115, sec. 534.]

Section 5357 and sec. 5358 provide the manner in' which it can be done, and they read as follow's:

Section 5357. The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reason*85able notice to the adverse party or his attorney in the action; but the motion to' vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term. [51 v. 57, sec. 535.]

Section 5358. The proceedings to vacate the judgment or order on the ground mentioned in sub-divisions four, five, six, seven, eight, nine, and ten, of section fifty hundred and fifty-four, shall be by petition, verified by affidavit, setting forth the judgment or order, the ground to vacate or modify it, and, if the party applying was defendant, the defense to action; and on such petition a summons shall issue and be served as in the commencement of an action. [74 v. 115, sec. 536.]

Section 5359 provides what the court should first hear arid determine.

Section 5359. The court must first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action. [51 v. 57, sec. 537.]

Section 5360 provides when the judgment shall be vacated.

Section 5360. A judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of action; and when a judgment is modified, all liens and securities obtained under-it ¿hall be preserved to the modified judgment. [51 v. 57, sec. 538,]

The record does not disclose that any of the requisite' steps were taken, and the court was powerless to modify the original decree without these being taken, and when the court so acted, the action was erroheous.

The second question is, can a personal judgment be rendered upon a cross-petition without a summons issuing when the defendant is in default for answer to the original petition.

The defendant claims that this is authorized by sec. 5071. That section reads as follows:

Section 5071. The defendant may set forth in. his answer as many grounds of defense, counter-claim, and set off as he has, whether they are such as have been heretofore denominated legal or equitable, or both; he may claim therein relief touching the matters in question in the petition against the plaintiff, or against other defendants in the same action; and each must b.e separately stated and numbered, and they must refer in an intelligible manner to the causes of action, which they are intended to answer. [51 v. 57, secs. 84, 93.]

To give this section a proper construction, it must be construed in connection, with sec. 5072, which reads as follows:

Section 5072. The counter-claim mentioned in the preceding section must be one existing in favor of a defendant, and against a plaintiff between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action. [51 v. 57, sec. 94.]

From this it will be seen that the affirmative relief granted a defendant against a co-defendant must be such relief as arises or is connected with the subject of the action. What is the subject of the action in the case at bar? The liens that may be held upon the mortgaged premises. Where one defendant can obtain affirmative relief against a co-defendant, he may defeat his lien. He may plead certain facts that would estop him from asserting his lien, and have his lien cancelled, but he cannot have any other relief against his co-defendant, except such as grows out of the- cause of action alleged in the petition. Any other construction as suggested by counsel, would involve innumerable controversies, both at law and in equity, which would never end. It would notify a defendant of a suit pending for one thing, for which if he happened to be in default judgment might be taken against him for an entirely different cause of action. The statutes of Ohio authorized a *86party to be notified of a suit pending against him by summons, and when it is for the recovery of money only, the summons must notify him of the sum for which judgment will be taken against him if he fail to appear, and if he fail to appear, judgment cannot be taken against him for a larger sum. This is provided for in sec. 5037, Rev. Stat., and is no doubt based upon the ground that every one is entitled to his day in court. How stands the case at bar? The summons notified the defendant that if he failed to appear, judgment would be taken against him for a certain sum, and instead of this sum a judgment is taken against him for a larger sum, and part upon an entirely different cause of action. This was erroneous.

The next question — could the court render the original decree, to-wit: “an order to sell subject to the 2-26th part of a certain indebtedness set forth in the answer and cross-petition of Marquis & Kennedy.”

Before lands can be sold in Ohio at judicial sale, they must be appraised.

Section 5389, provides how they shall be appraised.

Section 5391, provides for what sum the lands can be sold, viz.r two-thirds of appraised value.

So in the case at bar, it was the legal right of the judgment debtor to have the premises appraised at their cash value, and when thus appraised it was his legal right that the proceeds of that sale should amount to not less than two-thirds of the appraisement. Further, it was his legal right that before the appraisement was made, the appraisers should make oath that they would thus appraise the premises. All these requirements presuppose that the court has so ordered. Yet in this case, if the appraisers did their sworn duty, they did not appraise these premises at their cash value, “but appraised them subject to an undetermined indebtedness.” This the law did not authorize, and their appraisement was void. If this is true, it follows that the court could not authorize them or the sheriff to do an unlawful act; so this part of the original decree is erroneous.

In this case, the sale was not made upon the original decree, but upon the modified decree as made at the September term, 1886. As I have stated, the modified decree was erroneous, and being erroneous it carries with it all acts done under it.

Another question is made as to the power of the court to fix the amount at which the premises were to be sold. As the views we have expressed dispose of the case, and the question does not necessarily arise, it is unnecessary to.decide it.

The court below by its order dismissed the other cross-petitions.

The original petition asks among other matters, for the marshalling of the liens and that their priorities may be adjusted. This, in justice to lien-holders as well as the judgment debtor, should be done, upon the one hand, that all liens may be paid, and on the other hand, that the debtor’s property may be appraised and sold free of any complication. It is made the duty of the court when it appears that all parties for a proper determination of the cause are not before the court, that the court shall order them to be made parties. In the case at bar the court ordered a necessary party who was asserting a lien, to be dismissed without prejudice. This prevented the marshalling of the liens and the adjusting of their priorities, and of course the right would still remain in the necessary party to contest the lien of the plaintiff below, as well as the defendants, Marquis & Kennedy, and if this contest would be successful it might or might not inure to the plaintiffs in error. The order of the court therefore is:

All decrees and orders made .in this case will be reversed. The previous judgment rendered against the plaintiff in error will be modified so that the personal judgment will be in the sum due upon the note set out in the petition at the time judgment was rendered in the court below. The defendant in error, Dickinson, will pay the costs of this proceeding in error, for which execution is awarded. The cause will be remanded for further proceedings according to law, and to carry the order for costs into execution.

*100R. P. Ranney, and Adams & Russell, for plaintiff.

Boynton & Hale, and Ingersoll, for Oberlin College.

James A. Lynes, for Hardwick Seminary.