The record-union., 1892-12-30
POINTS FOR LAWYERS.
The Supreme Court Reverses a Mer-
ced County Case.
An Action to Have Deed Declared a
Mortgage and to ForecIose
Hereunder.

The Supreme Court filed its opinion in
Deputy Clerk Govan's office yesterday in
the case of the MERGED Bank VS.. A. Ro-
seminal and others (appellants). The ac
ton was brought to have a deed, abso
Lutte on its face, declared mortgage and
to obtain foreclosure of the same. 1t is
brought against A. Rosenthal and S.
Peckerman, as copartners, doing bust
ness under the style Of Rosenthal q Peck
erman, and against 4. Rosenthal and S.
Peckerman and Betsy RosenthaI, wife of
A. Rosenthal.
1t IS averred that on and prior to July
20, 1888, the copartnership and A. Rosen-
thai and 5. Peckerman were indebted TO
the plaintiff in the sum of about $1,000,
and being DESTROYS of establishing a
further credit with the plaintiff, and of
securing the payment of said moneys
then due the plaintiff, and of securing
the payment of said moneys then due the
payment to plaintiff Of any and all other
sums of money and advances that might
thereafter become due to plaintiff from
said defendants, or any of them, and also
ofsecuring any and all balances that might
thereafter be found due from said de-
PENDANTS or any of them to plaintiff in the
course of their dealings, whether such
Indebtedness should be evidenced by
promissory notes then or subsequently
given or otherwise.
The defendants, A. RosenthaI and Betsy
Rosenthal, on the Goth day of July, 1883,
to secure the plaintiff of the principal
sum then due and thereafter to become
due to plaintiff, for moneys thereafter TO
be advanced to said defendants, and the
interest thereon as hereinbefoTe stated,
notes or other Instruments, then or there
after to be given, on said 10Th day of July,
1885, executed to plaintiff deed for the
mOrtgaged premises, absolute on its face,
but intended to be and in fact mortgage,
ito secure the payment to plaintiff of all
money then due at the day of its date,
and all moneys to become thereafter due
from said defendants, Rosenthal Il Peck
erman, and a. Rosenthal and 5. Pecker-
man."
1t is also alleged that Rosenthal and
Peckerman were partners, and that GER
tain Indebtedness accrued from them to
plaintiff subsequent to July 20, 1888, part
of which was evidenced by promissory
notes, which are set out at length in the
complaint.
Judgment was asked against defend
ants, Rosenthal and Peckerman, for
81, 4l2, with interest at u per cent per
month from June, 1884, for costs and at
| torney's fees, decree of foreclosure and
sale of the premises, and for a Judgment
for the deficiency, if any, against defend
ants Rosenthal and Peckerman.
Defendants A. Rosenthal and Betsy
Rosenthal appeared and answered at
length, and as between them and plaintiff
a trial was had. 1t does not appear that
! Peckerman was served with summons,
and he did not appear in the case. No de-
fault or judgment is entered against him.
A decree was entered in favor of plant
| if, against A. Rosenthal and Betsy Rosen-
| thai, declaring the deed to be mortgage
and for sale of the premises, for the
payment out of the proceeds of the sale
| the sum of S2,306 95, found due, with a
| direction to the Sheriff to report the de-
! ficiency, if any, to the court.
The appeal was taken by A. RosenthaI
! and Betsy Rosenthal from the judgment
and from an order refusing them new
| trial. The notice of the appeal was served
upon the plaintiff, but not upon s.
| Peck and an objection was made
| to the jurisdiction of the Supreme Court
| to hear the appeal, because the notice was
not served upon Peckerman.
''It is contended," says the Supreme
| Court, that the Judgment discharges
| Peckerman fromsthe debts, SO far as
plaintiff is concerned, and that upon a
reversal he may be brought in and made
responsible. He, therefore, it is argued,
! has an interest in maintaining the judg-
ment, and is an adverse party, within the
] meaning Of Section $40 Of the Code of
| Civil Procedure"
Upon this statement of the case the Su-
prenle Court reviews it at great length,
and the Judgment and order of the lower
| court was reversed and the court directed
to enter Judgment for the defendants on
| tho fin6in0S