
    Winemiller v. Laughlin et al.
    
      Constructive service — When conclusive in collateral attack — Foreclosure of mortgage — Sufficiency of petition, to support decree against other lienholders.
    
    1. Where, in an action brought to foreclose a mortgage, an affidavit in due form to obtain service, by publication, is filed and publication had, a finding by the court of common pleas that the publication “ is in all respects regular and according to law,” and that the defendant has been “duly served with notice of the pendency of said cause of action,” is conclusive against such defendant in a collateral attack upon the judgment even if he had no actual notice of the proceedings, resided within the state and might have been personally served with a summons, and although it does not appear of record that after the-publication was made and before the hearing an affidavit was filed stating that the residence of such defendant was “unknown and cannot with reasonable diligence be ascertained,” as is prescribed by section 5048, Revised Statutes.
    2. The plaintiff in an action to foreclose a mortgage, is not required to set forth either the nature of, or the facts constituting, the claim of another lienholder, in order to bar the latter by a decree against his claim if he should fail to answer. If for that purpose anything more is required than to make him a party and serve him with legal process, it will be-sufficient for the petition to state that such defendant claims some interest in the mortgaged premises, and advises him that his claim or lien will be barred if he fails to appear and disclose it.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Paulding county.
    On October 8, 1883, The Collins Manufacturing-Company, a body corporate, then owning the land which is the subject of controversy in this action, executed a mortgage thereon to Clara A. Hoover, to secure the payment of a promissory note for $1,000, due the 5th of the ensuing October. The Collins Manufacturing Company, before September 5, 1885, conveyed the premises to one J. W. Vogelsong, the foregoing mortgage still subsisting; afterwards, on September 5, 1885, said Vogelsong executed and delivered to Mary B. Laughlin, defendant in error, a mortgag-e on said premises to secure the payment of $1,350.00, due in five years from date, and on November 2, A. D. 1885, he executed and delivered to her another mortgage thereon to secure the payment of $1,000.00 due, also, in five years.
    On November 29, 1890, Clara A. Hoover, the mortgagee of The Collins Manufacturing Company, as aforesaid, began a ■ suit in Paulding county, where the land lay, to foreclose her mortgage, making among others, J. W. Vogelsong, the purchaser of the premises, and said Mary B. Laughlin, his mortgagee, parties to the action. Mary B. Laughlin being served by publication only, and having no notice, in fact, that the action was pend; ing, did not appear and set up her claim, whereupon a decree was entered ordering a sale of the premises to satisfy the mortgage of Clara A. Hoover. She, becoming the purchaser thereof at the sale made under the decree, had the sale confirmed and her title quieted against any claim, among others, of said Mary B. Laughlin.
    Afterwards, Clara A. Hoover, the purchaser, sold and conveyed, by a deed in fee simple, the premises to said J. W. Vogelsong, and by similar conveyances the title became lodged in the plaintiff in error, Eiger F. Winemiller. Thereupon Mary B. Laughlin, defendant in error, commenced an action in the court of common pleas of Paulding county to foreclose the mortgages made to her, which have been mentioned before, making, among others, J. ■ W. Vogelsong, her mortgagor, and Winemiller, to whom the premises had been conveyed, parties defendant.
    Winemiller answered setting up the record of the action before mentioned, brought by Clara A. Hoover, showing the decree for the sale of the premises, the sale to Clara A. Hoover, its confirmation and the decree quieting the title of the purchaser, against the claim of Mary B. Laughlin, and the several mesne conveyances to himself, by virtue of which he contends he has succeeded, and becomes subrogated to all the rights, which by virtue of said decree and sale became vested, in said Clara A. Hoover.
    To this answer Mary B. Laughlin interposed the following reply:
    
      “Plaintiff, for her reply to the amended answer of Eiger P. Winemiller, says that she denies that said Clara A. Hoover, in said cause, No. 3,482, in her petition prayed that said Mary B. Laug’hlin be required to answer and set up her interest in or lien upon said premises, if any she had, or be forever barred.
    “Said Mary B. Laug’hlin denies that she had due and legal or any notice of the pendency of said action or that any day was named in said notice on which she was required to answer, as will appear from the certified copy of the record attached to said amended answer.
    “Plaintiff admits that Clara A. Hoover was the purchaser at said sheriff’s sale and that she conveyed the land in question to John W. Voglesong and avers that the consideration named in said deed was twenty-five hundred dollars.
    ■ “She further admits that said John W.. Vogelsong conveyed said premises to Edwin B. Hale, who conveyed to Henry E. Spring, who conveyed to said defendant, Eiger P. Winemiller, as in his said amended answers contained.
    “Plaintiff denies that the defendant, Eiger P. Winemiller succeeded and.become-subrogated to the rights of Clara A. Hoover in said premises.
    “Plaintiff further avers that the pleadings, record and proceedings in said cause, No. 3,482, were not sufficient to warrant any judgment or order as to her, and that the court was without jurisdiction of her person.
    “Plaintiff avers that she had no actual notice whatever of the pendency and prayer of said petition in said cause, No. 3,482, until informed by her attorneys about the time of the filing of the petition herein.
    
      “That for more than seven years last past, she has been a resident of the county of Erie, in the state of Ohio.
    “That the affidavit set forth in said proceedings was wholly false.
    “Plaintiff further avers that at the time of the execution and delivery of the mortgage set forth in her petition, the defendants, John W. Vogelsong and Emma O. Vogelsong, by their said mortgages duty executed and acknowledged, covenanted with said plaintiff as follows:
    “And we, the said grantors, do for ourselves and our heirs, executors and administrators covenant with the said grantee, her heirs and assigns, that at and until the ensealing of these presents, we were well seized of the above described premises as a good and indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written, that the same are free and clear from all incumbrances whatsoever, and that we will warrant and defend said premises with the appurtenances thereunto belonging to the said grantee, her heirs and assigns forever, against all lawful claims and demands whatsoever.
    “The said Clara A. Hoover, the purchaser at said sheriff’s sale, for the consideration of the sum of twenty-five hundred dollars, conveyed said premises to John W. Voglesong on the 25th day of April, 1887, through whom the said defendant, Eiger F. Winemiller, claims title and the said Collins Manufacturing Company, subsequent to the date of its mortgage to said Clara A. Hoover, but prior to the date of plaintiff’s mortgage and the begining of said cause, No. 3,482, by its deed of general warranty, duty executed, acknowledged and delivered, conveyed said premises in the petition described to John W. Vogiesong. ”
    In the court of common pleas a demurrer was interposed to this reply and sustained. The cause was then taken by appeal to the circuit court, where, upon a demurrer being again interposed to the reply, the latter court held the. answer to be insufficient, and rendered judgment for the plaintiff below, now defendant in error. Thereupon the plaintiff in error began the present proceedings to obtain a reversal of the judgment of the circuit court.
    
      Sylvester Price and Snook & Snook, for plaintiff in error.
    Where a record of a proceeding’ or action shows that the court passed upon the question of service and found that the defendants therein were notified according to law, a defendant on whom no service was had, other than by publication, will not be permitted in a collateral proceeding to draw in question the jurisdiction of the court by proving that at the commencement and during the pendency of the proceeding he was a resident of the state. Hammond v. Davenport, 16 Ohio St., 178; C. S. & C. R. R. Co. v. Village of Belle Center, 48 Ohio St., 273.
    If the application for publication is untrue, if defendant at the time was a resident of the state and service of summons could have been made upon her within the state, the judgment would not hsve been void, although it might be voidable. If the latter, it could not be attacked in a collateral proceeding, but must be vacated in a regular proceeding under the code instituted for that purpose. Wherle v. Wherle, 39 Ohio St., 365.
    
      Where the record shows that a court had. jurisdiction to render judgment, and having rendered it, the law, when the judgment is collaterally attacked, will make all presumptions necessary to sustain it. Geignon v. Astor, 2 How., 319; Herman Es. & Res. Jud. Sec., 60.
    The plaintiff was not required to set out fully the nature of Mrs. Laughlin’s lien. She is not supposed to know the nature of every person’s claim. It is enough if the plaintiff set up the existence of the claim. It is then the defendant’s business, when thus called upon, to disclose its nature. Anthony v. Nye, 30 Cal., 401.
    The purchaser is bound to look no further back than the order of the court made in a proceeding which the law has empowered it to entertain, and with the proper parties, or subject matter before it.
    
      W. H. Phipps, for defendants in error.
    Enough must appear either in the application or the order or at least somewhere on the face of the pleadings, to call upon the court to proceed to act; and all agree that when that does appear then the court has acquired jurisdiction, or in other words, is properly set to work. Young v. Lorain, 11 Ill., 624; Fitzgibbon v. Lake, 29 Ill., 165.
    If enough appears to call upon the court to proceed to act (Mulford v. Stalzenback, 46 Ill., 303, 307) or if the allegations are sufficient to cause the judge to act (Galena & Chicago Union R. R. Co. v. Pound, 22 Ill., 399, 414) in a special proceeding, or if there was something stated to amend by, the proceedings are not void collaterally, but in the cases where the allegations showed affirmatively that no cause of action existed, the attention of the court was not challenged, nor was it called upon-to act by any material allegation, nor was there such allegation to amend by. Van Fleet’s Collateral Attack, 81.
   Bradbury, J.

The onty question for consideration presented by the record is whether Mai-y B. Laughlin, defendant in error, is bound by the proceedings in the action brought by Clara A. Hoover to foreclose the mortgag-e of the latter. Her counsel contend that she is not bound, for two reasons: First, because she was not legally notified of the pendency of the action; second, if she was legally notified, the averments of the petition were not sufficient to require her to answer and set forth a claim under her mortgage, and that, therefore, a clause in the order of- confirmation quieting’ the title of the purchaser against her mortgage was void.

That the defendant in error was a resident of this state and might have been notified, by a summons served upon her personally, of the pendency of the action, the decree in which is now set up to estop her, and that she had no actual knowledge of its pendency is admitted. She had, however, constructive notice by publication, unless the published notice was too defective in its context or in the steps taken to authorize and perfect it to charge her constructively.

The notice was in these words:

“Henry L. Custer, J. M. Custer and Mary B. Laughlin, whose place of residence are to the undersigned unknown, will take notice that Clara A. Hooker, on the 20th day of May, A. D. 1886, filed her petition in the court of common pleas, of the county of Paulding’ and state of Ohio, alleging, among other things, that J. W. Vogelsong executed and delivered to her his certain promissory note calling for $1,000.00, and to secure the payment thereof he had executed and delivered to said Clara A. Hoover a mortgage upon certain real estate therein described and that said claim is unpaid, and praying for a judgment and foreclosure of said mortgage, and alleging that the aforesaid Henry L. Custer, J. M. Custer and Mary B. Laughlin claim a lien upon the premises in said mortgage described.
“Said cause will be for hearing on the 3d of January, A. D. 1887, and unless the above named, and each of them, come into court and set forth their said respective claims they will be barred therefrom.”

The notice states that the mortgage sought tobe foreclosed, and the note secured by it, were executed by J. W. Vogelsong, whereas, the fact was, and the petition so averred, that they were executed by The Collins Manufacturing Company, which was the grantor of Vogelsong, and Vogelsong was the mortgagor of defendant in error. This publication was an attempt to notify her of the pendency of the action; it fairly disclosed that the plaintiff in that action sought to foreclose a mortgage on premises upon which she claimed a lien and advised her that her claim would be barred unless she appeared and set it forth. An affidavit was fled, regular in form, as prescribed by the statute, as preliminary to service by publication. Section 5048, Revised Statutes, provides that where the residence of the party served by publication is unknown, an affidavit stating that fact shall be made before the hearing. Whether or not such an affidavit was made does not appear from the record; nor do we find it necessary to determine whether where the preliminary, affidavit, as in this case, shows that the residence of the party to be served by publication is unknown, a second affidavit, to that effect, made after the publication and before the cause is heard, is necessary to give jurisdiction to the court, for the court of common pleas is one of general jurisdiction competent .to determine questions relating’ to that jurisdiction, and' it expressly found that the defendant here had .been ‘ ‘duly served with notice of the pendency of said cause of action and the prayer of the plaintiff’s petition;” and if such an affidavit was necessary to authorize the finding, we should presume in a collateral proceeding like this that it was made. Richards v. Skiff, 8 Ohio St., 586.

We need not pause to consider the sufficieny of this notice, or whether the finding above quoted would have bound her, had she instituted proceedings in error directly on the judgment to test their soundness; or if she had brought an independent proceeding to attack the judgment directly; for she did neither, but instead chose to assail it in a collateral proceeding as having, against her, no binding force whatever. The policy of the law is to maintain the stability of judicial determinations against this mode of attack, and, that universal principles of natural justice may not make this mode necessary, the rules of law provide the methods above mentioned for the correction of irregularities that are not sufficient to render a judgment, upon its face, a nullity. Of course a judgment that is void may be disregarded whenever and wherever it may be met. .The irregularities in the service by publication, however, disclosed by the record under consideration, do not, we think, render the judgment void against the defendant in eri’or, and open to collateral attack by her in the face of a finding by the court of common pleas, a court having capacity to determine, in the first instance, its own jurisdiction, that she had been legally served by publication. If an additional affidavit, as prescribed by section 5048 of the Revised Statutes, was necessary to support such finding, and complete the jurisdiction, we, as before stated, should presume that it was made, Lessee of Fowler v. Whiteman, 2 Ohio St., 271; Buchanan v. Roy's Lessee, 2 Ohio St., 251; Richards v. Skiff, 8 Ohio St., 586.

The petition of Clara A. Hoover set forth a claim upon a mortgage, and without attempting to disclose the nature of the claim held by the defendant in error, or to state facts which would constitute any claim whatever, proceeded to state that she, defendant in error, and certain other defendants, naming them, “have or claim to have some .interest in or lien upon said premises, the amount and nature of the same is not fully known to said plaintiff, and she avers that they should be served in this action with summons and come in and set up their interest in said premises, or be forever barred of the same. ’ ’

Certainly, under séction 5006, Revised Statutes, Mary B. Laughlin was a proper party to the action brought by Clara A. Hoover on her mortgage, for the former held a mortgage on the premises against which the latter was proceeding; and if the purchaser, at a sale made under such proceedings was to secure title free from her lien, then Mary B. Laughlin was a necessary party.

Being at any rate a proper party to the action, she ought, upon principles of well nigh universal application in such cases, to be bound by the judgment rendered in it unless the petition imposed no duty upon her to answer and set forth her claim.

Unless the plaintiff, in an action brought to foreclose a mortgage, in order to bar the lien or claim of. another in the mortgaged premises by a decree taken pro confesso upon a failure to answer, is bound either to state the facts that constitute such lien or claim, or disclose its nature so that the claimant could identify and recognize it, we do not perceive what inore should have been required of Clara A. Hoover in the action, the record of which we are now considering. The petition contained a pertinent description of the premises, and as the portions of it quoted before show, informed Mary B. Laughlin that if she had any lien thereon she was required to set it forth on pain of having it barred if she failed to comply. This we hold to be sufficient to require her to appear and set forth her claim, and if she fails to comply, will authorize a decree against her in respect to its validity. Our Code of Civil Procedure simply requires of a plaintiff that he set forth his own cause of action (section5060, Revised Statutes); while section 5006, before referred to, authorizes him to make any person a defendant to an action “who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.” Whether, in view of the simplicity of procedure which it is the object of the code to secure, anything more should be required of a plaintiff in an action to foreclose a mortgage, to ®ompel lienholders to come in and set forth their respective claims, upon the property in controversy, than to merely make them parties and serve them with process, is a question that may admit of considerable doubt, but its determination here is not necessary.

Judgment reversed.  