#### Downer vs. McVickar and others.

May 15.

Ia the entitling of the affidavit of “no answer” in a foreclosure action, A and 33 were named as defendants although they had not been named in or served with the summons or complaint, and the affidavit was that no answer &c. had been served in the action thus entitled, and that notice of *lis pendens*had been filed in *that*action. On appeal by A, and by several of those who were served with the summons, from a judgment by default against them all, it was *held,*that the judgment as to A was erroneous, the court having gained no jurisdiction over him.

But the judgment as against the other appellants was affirmed, there being no pretense that there was any other action pending between the same mortgagee and mortgagor, and the fact that the affidavit was made part of the judgment roll in the case showing sufficiently in what action it was made.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Action to foreclose a mortgage. The summons and complaint named *Bagnatt, Me Vichar*and several other persons as defendants, but neither *John Nazro*nor the *Bank of Mil-waulcee*was named in or served with the summons or complaint. The affidavit of “ no answer ” hied in the case, was entitled in an action in which all the defendants mentioned in the summons and complaint, and also *John Nazro*and the *Bank of Milwaukee,*were named as defendants. The affidavit was, that no answer or demurrer in the action in which the affidavit was *entitled,*had been served on the plaintiff, and that a notice of the pendency of *that*action had been duly hied, &c. No other proof of no answer, or of the filing of notice, was made, and judgment by default was entered against all the defendants named in the summons and complaint, together with *John Nazro*and the *Bank of Milwaukee. Bagnall, Me Vichar*and *Nazro*appealed.

*Waldo, Ody & Van*and *Jenkins & Hichox,*for appellants.

*J. Downer, pro se.*

*By the Court,*

Cole, J.

It was conceded by the respond*169ent on tbe argument, that judgment in this case was improperly taken against the appellant Nazro, and the *Bank of Milwaukee.*It seems they were not named in the summons, nor served with process, and it is obvious, therefore, that the court acquired no jurisdiction over them. Indeed the respondent stated that it was by mere inadvertance or mistake that he took judgment against them. The *Bank of Milwaukee*has not appealed from the judgment, but *Nazro*has. The judgment must therefore be reversed as to him, and affirmed as to the other parties defendants below.

It was insisted that the judgment should be reversed altogether, on account of an obvious mistake in the entitling of the affidavit made by respondent that no answer had been served by the defendants, and that he had filed notice of the pendency of the action as required by law. In the entitling of the affidavit, *John Nazro*and the *Bank of Milwaukee*are named with the other defendants, and therefore it is said the affidavit should not be regarded as made in the foreclosure suit of *Downer vs. McVichar et al.*It is not pretended that there are two foreclosure cases between *Doivner*and *McVichar,*with other and different persons, defendants. We hardly think we should be warranted in holding that the j udgment was erroneous as to parties served with process, and over whom, it is conceded, the court had jurisdiction, merely because in entitling the affidavit, a mistake was made, and one or two names were inserted which ought not to have been.

The question, here is one of identity, and the fact that the affidavit is attached to and made a-part of the judgment record, shows with sufficient certainty that it was made in this particular cause.

But for the reason before stated, the judgment as to the appellant *Nazro*must be reversed, with costs, and affirmed as to the other parties defendants.