#### Christ, Respondent, vs. Davidson, Appellant.

*January 17*

February *3, 1903.*

*Actions: Voluntary appearance: Default ^Judgment of another stater Collateral attach: Scope of pleading.*

1. Where there is‘no question as to the jurisdiction of the subject. matter by the court in Ohio where a judgment was rendered against defendant, in an action thereon in Wisconsin, a finding that defendant voluntarily appeared in the prior action is; supported by a writing, being part of the records of the foreign action, signed by defendant, declaring his appearance, and sent to plaintiff’s attorney for the obvious purpose of being filed.

2. In an action on a foreign judgment it appeared, among other things, that one count in the petition filed therein set out the-execution of a note and mortgage by defendant to a third-party, and their transfer by an indorsee to plaintiff as collateral for a sum less than the face of the note. Judgment was demanded for the face of the note, which prayer was reiterated at the close of the petition, with the further prayer that the proceeds of the mortgaged property be paid to plaintiff, to the extent of his claim, and the balance to plaintiff’s-assignor. Defendant entered an appearance in writing, after which plaintiff’s assignor appeared as defendant, adopting the-petition throughout as his answer, “and the prayer thereof.”' Judgment of foreclosure and sale was taken on default, followed by sale, distribution of the proceeds by order of the-court, and personal judgment in favor of plaintiff’s assignor and against defendant for the deficiency. *Held,*that the petition contemplated a personal judgment against defendant, and that the judgment rendered, and on which action was brought, in Wisconsin, was entirely responsive to the prayer and nowise exceeded the relief which defendant must have known was demanded, had he concerned himself to examine the petition filed in the action in which he voluntarily appeared.

3. In such case, there being no lack of jurisdiction, either of the-subject matter or of the person, the validity of the foreign judgment was not open to attack.

Appeal from a judgment of tb© circuit court for Trempea-leau county: J. J. Eruit, Circuit Judge.

*Affirmed.*

*622Action to recover upon a judgment in favor of tbe plaintiff and against tbe defendant, rendered by tbe court of common pleas of Lawrence county, Obio, — a court of general •jurisdiction. Tbe record of tbe action in tbat court disclosed •a petition by tbe Blackford County Bank, as plaintiff, against *Arch P. Davidson*and Laura A. Davidson, as defendants, ■wbicb alleged tbat said defendants executed tbeir note for $2,000, payable to tbe order of Mattie Crist, wbicb, before judgment, and for value, bad been duly indorsed and transferred to *William F.*Ghrist, and by bim, in due course of trade, for consideration of $600, duly assigned and indorsed -to tbe plaintiff bank as collateral security for said sum. Tbe petition also set up tbe execution of a mortgage to secure said note; and tbe plaintiff prayed judgment against tbe defendant *Arch P. Davidson,*for tbe amount of said note; also for tbe foreclosure of tbe mortgage, and sale of tbe mortgaged premises, and for payment to it of $600, and of balance to *William F. Ghrist.*When about to .commence tbis action, tbe ■plaintiff’s attorney wrote tbe defendants of tbe fact of tbe .commencement of an action to foreclose tbat mortgage, and sent them, for signature, wbat be called a “waiver,” in order ■to avoid expense of giving notice by publication. Tbe de■fendants signed and sent to bim a paper in tbe following words: “We, and each of us, do hereby waive tbe issuing •and service of summons in tbis action, and also service by publication, and voluntarily enter our appearance herein,”— wbicb paper was filed in tbe court of common pleas, and upon wbicb tbat court recited in its judgment tbat such defendants "bad voluntarily entered tbeir appearance. After tbe commencement of tbe action, and before judgment, tbe respondent *William F. Ghrist*appeared as a defendant to tbe fore- ■ closure action, and filed answer in wbicb be declares tbat be “adopts as bis answer in tbis action each, every, and all tbe ■allegations of plaintiff’s petition, and tbe prayer thereof.” ..Judgment was entered by tbat court for tbe recovery of tbe *623whole amount of the note in favor of *Ohrist,*and for foreclosure and sale of the mortgaged premises, and the application of the proceeds upon the judgment; the first $600 thereof to be paid to the plaintiff bank.- Sale was had at the •amount of $1,000, and was distributed, by order of the court, for the payment of costs and taxes, and all the indebtedness of *Christ,*to the bank, and the balance of the judgment ascertained, of $1,410.75, for which execution was awarded against said *Arch P. Davidson-.*The trial court found substantially these facts, and that the defendant voluntarily entered his appearance in writing in said court of common pleas, whereby jurisdiction over his person was conferred upon'the court of common pleas, and rendered judgment in favor of the plaintiff and against the defendant for said balance of $1,410.75, ascertained by that court, together with interest thenceforward, from which judgment defendant appeals.

*C. W. Gilman,*for the appellant.

Eor the respondent there was a brief by *Richmond & Richmond*and *Higbee & Bunge,*and oral argument by *B. C. Hig-bee.*

Dodge, J.

The facts of the present case leave but little room for dispute upon legal propositions. The only questions open upon attempted collateral attack upon any judgment are whether the court, in its rendition, had jurisdiction of the subject-matter and of the attacking party. No question is raised upon the jurisdiction of the court of common pleas of Ohio generally over actions to recover upon promissory notes, and to foreclose any mortgage securing the same. Jurisdiction of. defendant’s person depends in this case on the fact that he voluntarily appeared in the action. Such fact has been found by the circuit court, and the finding has support from a writing signed by him, declaring such appearance, sent to plaintiff’s attorney, at his request, for the obvious pur*624pose of being filed. Some attempt is made to assert that ibis' paper was fraudulently obtained. Sucb contention is negatived by tbe finding of tbe trial court, against wliicb we certainly find no clear preponderance of evidence. This would seem to settle tbe matter, but appellant argues that tbe jurisdiction over bis person thus conferred was only for tbe purposes of tbe action pending, as measured by plaintiff’s pleading called tbe “Petition,” which be asserts did not contemplate any personal judgment, and especially none in favor of tbe present plaintiff, *Christ.*It might be interesting to examine bow far construction of pleadings, and adjustment of relief thereto, is within tbe jurisdiction of a court upon default, and whether a mistake therein is mere matter of error, examinable only on direct attack, or a wandering outside of jurisdiction, so as to be reviewable collaterally; but in this case we find nothing of either. Tbe petition set forth tbe indebtedness on tbe note payable to *William F.*Christ, and belonging to him, except for tbe interest of $600 therein belonging to tbe plaintiff bank, and, upon tbe first cause of action, prayed judgment for tbe amount alleged to be due thereon, which prayer was reiterated at tbe close of tbe petition, with further prayer that tbe proceeds of foreclosure sale be applied, $600 and interest thereon to tbe plaintiff bank, and tbe remainder to *Christ.*Thus tbe petition clearly contains a prayer for personal judgment against this appellant, and in sucb form as to protect tbe rights alleged. Those rights are recovery by *Christ*of tbe whole ■ debt, except as $600 and interest must be awarded tbe plaintiff bank. Such is tbe judgment rendered, and now sued on. It is entirely responsive to tbe prayer, and in no wise exceeds tbe relief which appellant must have known was demanded, bad be concerned himself to examine tbe petition filed in tbe action to which be voluntarily appeared. No lack of jurisdiction, whether of tbe subject-matter or of tbe person of tbe defendant, appearing, tbe validity of tbe judgment sued on cannot *625be attacked, otherwise in this action, and such record establishes appellant’s indebtedness and fully supports the judgment now appealed from, which, therefore, is correct.

*By the Oourt.*— Judgment affirmed.