
    Southward v. Jamison et al.
    
      Summons issued on petition — Sufficient to sustain judgment on cross-petition, when — Gross-petition involving matter not in original petition — Requires summons to party charged in cross-petition — Mortgage foreclosure — Allegations- necessary by -mortgagor — To bind party assuming and agreeing to pay mortgage debt — Pleadings.
    
      1. So long as a cross-petition in an action is strictly confined to “matters in question in the petition,” the summons issued on the petition would he sufficient notice to sustain a judgment rendered on the cross-petition; but when the cross-petition sets up matters which are not drawn “in question in the petition,” and seeks affirmative relief against a codefendant, of a nature different from that sought in the petition, a summons to the party.to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross-petition, especially when the cross-petition is filed after the defendant thereto is in default for answer to the petition, and a summons on the cross-petition in such case is necessary. Brown v. Kuhn et al., 40 Ohio St., 468, explained and qualified.
    2. In an action for foreclosure of a mortgage, in which there are neither the proper averments nor a prayer, upon which to found a personal judgment, it is error to adjudge or decree that a defendant shall pay the whole amount of the debt secured by the mortgage, and to award execution therefor.
    3. In an action to foreclose a mortgage, after the proceeds of the sale of the mortgaged premises have been exhausted, the court cannot award execution or render judgment for any balance due, against a person who has assumed and agreed with the mortgagor to pay the mortgage debt, unless the plaintiff elects to avail himself of the agreement to assume and pay, and alleges the same against the person assuming the mortgage debt, and the latter has been summoned to answer such claim.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Pickaway county.
    The defendant in error, Robert B. Jamison, commenced this action by a petition in the court of common pleas of Pickaway county against the plaintiff in error, John Southward, seeking to subject certain real estate to the payment of a judgment lien. There was a partition suit pending at the time of the levy of the judgment, wherein Annie Dawson was plaintiff and John Southward et al. were defendants. This last named case was consolidated with this action, and such proceedings were had that the court of common pleas found for the defendants. An appeal was taken to the circuit court and on the final hearing in that court findings were made as follows :
    “First — That on November 30, A. D. 1889, the Union Central Life Insurance Company filed its petition and thereby commenced a civil action in the court of common pleas of Delaware county, Ohio, against Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz, J. H. Martz, Mary A. Huddle and John Southward; that said action was brought to foreclose a mortgage executed by said Mary L. H. Jamison and R. B. Jamison, her husband; S. Jennie H. Martz and J. H. Martz, her husband; and Mary A. Huddle to the said Union Central Life Insurance Company upon lands in said Delaware county, Ohio; that said mortgage secured a note signed by said Mary L. H. Jami-son and S. Jennie H. Martz and endorsed by R. B. Jamison and J. H. Martz; that said John Southward was made a party defendant in said action and the. only allegation contained in said petition, referring to the said John Southward, is as follows:
    “Plaintiff further says and it charges that said defendant, John • Southward, since the filing of said mortgage herein described, has purchased and is now the owner of said real estate subject to plaintiff’s said mortgage, and asks that he may be notified of the filing, pendency and prayer of this petition and that he may be required to answer the same as to his interest in said real estate.
    “That said petition contained the following prayer :
    “Plaintiff therefore prays judgment against the said defendants, Mary L. H. Jamison and S. Jennie H. Martz, as principals, and said R. B. Jamison and J. H. Martz, as endorsers on said notes for said sum of $7,700 with seven per cent, interest thereon since October 1, 1889, and for the said sum of $140.22, together with eight per cent, interest thereon since first day of October, 1889, and that upon failure to pay the same within a short day to be named by the court, the said mortgage may be foreclosed and the real estate be advertised and sold, and the proceeds of said sale be applied in the payment of plaintiff’s claim and for all proper relief.
    “That said John Southward was then a resident of Madison county, Ohio, and was "duly served with a summons issued in said action, dated November 30, 1889, by the sheriff of said Madison county, Ohio, at his residence in said Madison county; that the said summons was served upon him December 3,1889, and required him to answer said petition on or before December 28, 1889, and that no answer or other pleading was ever filed by him in said case.
    “Second — That on January 25, 1890, the said defendants, Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz, filed their answer in said case, waiving the issuing and service of process in said case, and admitting the execution of said note and mortgage, and . as a cross-petition therein, they say:
    “That on or about the nineteenth day of April, 1889, they bargained and sold to one John Southward, of Madison county, state of Ohio, the 'said real estate in the plaintiff’s petition described, and for a valuable consideration, executed and delivered to the purchaser, the said defendant, John Southward, a warranty deed for the same, save and except the sum of $4,451.25, and the interest thereon, which sum with said interest, the said John Southward then and there promised and agreed to promptly pay to said plaintiff, the said Union Central Life Insurance Company, as the same became due and the said sum of $140.22, in plaintiff’s petition charged is the interest which said defendant, John Southward, agreed to pay on said first day of October, 1889, but which he has utterly failed and neglected to do. Defendants say that John Southward áccepted said deed from these respondents knowing full well that it contained a warranty against all claims except the said sum of $4,451.25, and the interest thereon, and all taxes falling due after June 20, 1889, of which clause the following is a true copy: “Except as to mortgage indebtedness to the Union Central Life Insurance Company, of ^Cincinnati, Ohio, amounting to the sum of $4,451.25, with interest from this date and taxes falling due after June 20, 1899, which grantee assumes and by acceptance hereof agrees to pay.
    “That he, the said John Southward, took possession of sdid lands and received the wheat crop harvested on said lands in July, 1889, which crop these defendants would have received were it not for said sale of the premises. These defendants further say they have no longer control of said lands or the income and profits derived from the same, and the said defendant, John Southward, utterly failing to pay said interest now past due, they ask that the said premises may be ordered sold on the foreclosure of said mortgage and the proceeds of said sale he applied on the said note in plaintiff’s petition described, and for all further relief.
    “Third — That said defendant, Mary A. Huddle, waived and entered her appearance in said case; that on February 4, 1890, an entry was made in said court in said case as follows:
    “This day came the plaintiff by its attorneys and this cause was heard upon the petition, the answer of Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz, the proofs and exhibits, and the court finds that each and all of the defendants except John’Southward have waived the issue and service' of process and have entered their appearance herein, and that they have confessed the allegations of the petition to be true; that the defendant, John Southward, hath been duly served with process herein, and that he is in default for answer or demurrer to the petition of the plaintiff, and hath thereby confessed the same to be true, and that there is due the plaintiff on the promissory notes in petition set forth and described, the sum of $8,028 with interest from this date on $7,700 at 7 per cent, per annum, and on $140.22, at eight per cent, per annum, and $187.98, thereof, at six per’ cent, per annum, and that to secure the payment of said notes, the defendants, Mary L. H. Jamison and R. B. Jamison, her husband, S. Jennie H. Martz and J. H. Martz, her husband, and Mary A. Huddle, executed and delivered to the plaintiff their certain mortgage as in the petition described, and on the premises therein described; that the same was duly filed and recorded as in the petition set forth and that the conditions in said mortgage have been broken.
    “That said premises were then ordered tobesoldand the proceeds thereof to be brought into court for distribution, ánd as to the first cause oí action in the petition set forth and as to all other matters and issues this cause is continued.
    “That a sale of said premises was made by the sheriff of Delaware county, Ohio, and on May 10, 1890, the said sale was duly^confirmed by said court, and at the same time the said court made the following entry: On motion of the plaintiff — and this cause coming on to be heard on the first cause of action in the petition set forth and the cross-petition herein filed of Mary L. H. Jamison, E. B. Jamison, S. Jennie H. Martz and J. H. Martz, and upon the proofs and exhibits, and the court finds that said defendant, John Southward, is in default for answer or demurrer thereto, and that the allegations of said cross-petition are thereby confessed by him to be true, and that said defendants, Mary L. H. Jamison, E. B. Jamison, S. Jennie H. Martz and J. H. Martz, conveyed the premises described in the petition to said John Southward in the manner and at the time as set forth in said cross-petition, and that the said John Southward at the time of said conveyance and as part of the consideration therefor agreed with said codefendants to pay to plaintiff the sum of $140.22, being a portion of the coupon note hereon sued on, on the first day of October, 1899, and the further sum of $4,451.25, with interest thereon from the eighteenth day of April, 1889, being part of the sum due on the principal note herein sued on, and also the taxes on the premises falling due after June 20,1889.
    “The court finds that said John Southward has not complied with the terms of said agreement; that he has not paid either of the above mentioned sums either in part or in whole; that the taxes for June, 1890, are not paid, and that there is due said plaintiff from said John Southward in pursuance of said agreement, the sum of $4,787.83, with interest at the rate of seven per cent, per annum from date:
    “Wherefore it is ordered and decreed by the court that the said John Southward pay said sum of $4,787.-83 to the plaintiff and save harmless therefrom said codefendants, Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz.
    “And the court coming now to distribute the proceeds of said sale amounting to $4,050 it is ordered that the sheriff aforesaid, out of the money in his hands pay:
    “First — To the treasurer of said county the taxes against said premises, to-wit, the sum of $49.14.
    “Second — The costs of this action, taxed at $91.03.
    “Third — To the plaintiff, The Union Central Life Insurance Company, the residue of the money remaining in his hands, to-wit, the sum of $3,909.23, which said sum shall be applied in liquidation of plaintiff’s claim as a payment thereon.
    “And there still remaining due plaintiff from said defendant, John Southward, the sum of $878.60, for which execution is awarded against him, and there also remaining due plaintiff from defendants, Mary L. H. Jamison, R. B. Jamison, S. Jennie H. Martz and J. H. Martz, the sum of $3,390.09, for which, execution is awarded against them, and there further remaining due plaintiff from said last named defendants, jointly, with said John Southward, the above mentioned sum of $878.60, for which execution is awarded against them after the said John Southward has been fully exhausted by legal process as above ordered in the collection of said last named sum.
    “Fourth — That said John Southward had no other or further notice served on him of the filing of the petition or the answer and cross-petition in said action than the service of said original summons in said action as aforesaid, which was served on him December 3, 1889.
    “Fifth — That the foregoing averments are all the averments contained in the record of said cause affecting the said John Southward.
    “Sixth — That said judgment was duly assigned by said Union Central Life Insurance Company to the said plaintiff herein, Robert B. Jamison.
    “Seventh — That on October 6, 1889, an execution was issued out of the said court of common pleas of Delaware county, Ohio, in said case, against said John Southward upon said judgment for said sum of $878.60, and interest thereon from May 10, 1890, at seven per cent, directed to the sheriff of Pickaway county, Ohio, and that said sheriff levied the same upon the undivided one-fourth part of the lands in the plaintiff’s amended petition described, lying in Pick-away county, Ohio, as the property of said John Southward, and that said land was advertised by the said sheriff for sale and before day of sale, said sale was withdrawn on account of litigation pending in this case.
    “That at the time said levy was made there was a suit pending in the court of common pleas of Pick-away county, Ohio, now consolidated with this case, wherein one Anna Dawson was plaintiff and John Southward and others were defendants (numbered 9978 on the docket of said court), to partition the real estate of which Pleasant Southward, the father of said John Southward, died seized; that said Pleasant Southward died May 22, 1892; that said levy was made while said partition suit was pending and before any order of partition was made in said case; that on October 15, 1892, said John Southward and his wife, by quitclaim deed, conveyed all their interest in the lands described in said partition suit to G. W. Southward, and said deed was filed for record with the recorder of Pickaway county, Ohio, on December 19, 1894; that on October 24, 1892, an order of partition was made in said case and same was continued as to all other questions.
    “That on December 10, 1892, the plaintiff herein, R. B. Jamison, was made a party defendant in said partition case and filed an answer and cross-petition therein admitting that the said John Southward was the owner of said undivided one-fourth interest in said lands and setting up that he had obtained the said judgment in the Delaware common pleas; that he had levied upon said John Southward’s undivided interest in said land, and that the same was a valid and subsisting lien thereon, and asking that the same be declared a lien upon it, and that when said premises were sold under the order and proceedings in partition, that the interest of the said John Southward therein might be ordered paid to him to the amount of said judgment, interest and costs, or if there was not enough realized on the sale of said premises out of the interest of the said John Southward to pay said judgment in full, that such unpaid amount be declared a lien upon the portion of said premises set off to said John Southward, and that he have such other and further relief as is equitable.
    “That on said tenth day of December, 1892, the said Granville W. Southward, who was a son of the said John Southward, on his own motion, was made a party defendant to said partition case, and asked leave to file an answer and cross-petition therein instanter, which leave was granted by the court, and the said answer and cross-petition was filed as of that date, setting up his claim to said land.
    “That on December 17, 1892, tbe said R. B. Jamison filed á reply to tbe answer and cross-petition of tbe said Granville W. Southward, taking issue with tbe facts therein set forth: That afterwards, on said December 17, 1892, said Granville W. Southward withdrew bis answer and cross-petition from tbe files of said court, and an order of partition was granted in tbe usual form, decreeing among other things that tbe said John Southward was tbe owner of an undivided one-fourth interest therein.
    “That on November 26,1892, tbe commissioners appointed to make such partition, made their report as folloAvs: ‘Upon actual view of tbe premises, we are of the opinion that tbe said lands cannot be divided Avithout manifest injury; and we do estimate tbe value of tbe same at: First tract, (A.) 30.65 A., appraised at $42.50 per acre. First tract, (B.) 53.4 A., appraised at $46.54 per acre. Second tract, 56.7 acres, appraised at $42.46 per acre. Third tract, A. and B., 44 poles of land and building, $600. Fourth tract, 36 poles of land and building, $1,033. Fifth tract, 36 poles of land and building, $850.’
    “That on December 17, 1892, an order was made in said case in said court as follows: ‘This cause coming on this day for bearing upon tbe return of tbe sheriff and tbe report of tbe commissioners heretofore appointed herein, and on motion to confirm tbe same, and it appearing from said report that said estate could not be divided by metes and bounds without injury to tbe value thereof, and that said commissioners have made and returned their appraisement, tbe court find tbe said return and proceedings in all respects correct and in conformity to law and do therefore approve and confirm the same.’
    “And it being made further to appear to the court that dower has heretofore been assigned to Abigail Southward, widow of said Pleasant Southward, deceased, in land not included in these proceedings, no dower in these premises was assigned her.
    “And it being made to appear to the court that the said parties, both plaintiff and all of the defendants, by agreement have elected to take the said premises at the appraisement, excepting tract No. 1 of said surveyor’s report, which said tract by consent of all the heirs is hereby reduced to $43.50 from the appraisement of $46.54, and the said parties, both plaintiff and defendants, elect to take as follows:
    “Tract No. 1, takén by John Southward at $42.50 as per agreement. Tract No. 2, taken by Annie Dawson at the appraisement. Tract No. 3, taken by Margaret Clarridge at the appraisement. Tract No. 4, taken by Jane Lister at the appraisement. Tract No. 5, taken by Jane Lister at the appraisement. Tract No. 6, taken by Henrietta Hays at the appraisement.
    “And the court further finding that the total property so taken by the parties respectively, amount to the sum of $8,462.60.
    “That the costs, including the sum of $184.28 to Schleyer & Abernethy and to Samuel W. Courtright, the sum of $25, as a counsel fee amounting to the sum of $307.59.
    “That the said John Southward, Margaret Clarridge and Jane Lister are each entitled to one-fourth part of said total sum after deducting the taxes and costs, to-wit, the sum of $2,038.74.
    “That the said Annie Dawson and Henrietta Hays are each entitled to the one-eighth part of said total sum deducting the taxes and costs, to-wit, the sum of $1,019.37.
    “It appearing to the court that the property so elected to be taken by said John Southward, Margaret Clarridge and Annie Dawson after the application of their distributive share of said estate to the payment of the same leaves a .balance to be paid by them respectively as follows: By John Southward, the sum of $230.76; by Margaret Clarridge, the sum of $368.74; by Annie Dawson, the sum of $283.25.
    “And it is further ordered that the parties respectively pay to the sheriff of Pickaway county, Ohio, the said sum in excess of their respective shares of said estate.
    “The court further find that after the application of the amount of property so elected to be taken by the said Jane Lister and Henrietta Hays to their respective shares of said estate, there remain due them respectively the sum of: To Jane Lister, the sum of $405.74; to Henrietta Hays, the sum of $169.37.
    “It is therefore ordered that the said estate so divided and appraised and so taken by said heirs respectively, be and hereby is adjudged and decreed to said heirs upon their complying with the foregoing order; the said sheriff is thereupon directed to make, execute and deliver to each of said heirs respectively, a good and sufficient deed for said premises so elected to be taken by each.
    “And the court coming now to distribute the funds in the hands of said sheriff does hereby order and direct that he pay, first, the costs in this case, amounting to $307.59; second, to Jane Lister, the sum of $405.74; third, to Henrietta Hays, the sum of $169.-37.
    
      “Eighth — That on December 17, 1892, the sheriff of Pickaway county, Ohio, as directed by said order, executed and delivered to John Southward a deed for the 53 2-5 acre tract of land which is the same land described in the plaintiff’s supplemental answer and cross-petition filed herein, which deed was filed for record with the recorder of Pickaway county, Ohio, December 19, 1894; that on December 17, 1894, the said G-. W. Southward and wife executed and delivered to Jackson Baker, a, deed of general warranty for the same premises, and which deed was filed for record with the recorder of Pickaway county, Ohio, on December 19,1894; that on October 10,1898, John Southward and wife executed and delivered to Jackson Baker, a quitclaim deed for the same premises, and which deed was filed for record with the recorder of Pickaway county, Ohio, on October 12, 1898.
    “From the foregoing facts, the court finds that the said judgment rendered in the court of common pleas of Delaware county, Ohio, in favor of the Union Central Life Insurance Company and against the said John Southward, is not void, but that the same is a valid judgment against said John Southward, and that the levy so made under the execution issued upon said judgment, constitutes a valid lien upon said real estate in said supplemental answer and cross-petition described, and that said plaintiff is entitled to have the same sold in order to pay the amount due him upon his said judgment.
    “To each and all of the foregoing conclusions of law the defendant, John Southward, as well as the defendants, Elizabeth Baker, Orin Baker, Edgar J. Baker, John W. Baker, Lawson Baker, Alton McCafferty, Roy McCafferty, Everett McCafferty and Lawrence McCafferty excepts.”
    
      The petition in error in this case is to reverse the judgment- of the circuit court rendered upon these findings.
    
      Mr. Milt Morris, for plaintiff in error.
    There is a well settled rule of law that every party to a litigation or action, in any degree affecting his rights, is entitled to his day in court, and to afford this day in court, the law provides the manner of giving notice of the pendency and purpose of the action which must be strictly followed unless the party enters his appearance and waives the service of this notice, and there was no appearance entered in this case by said John Southward.
    The plaintiff had no right to its judgment against said John Southward upon its petition, because it did not ask for any, nor did it allege facts sufficient to entitle it to any judgment against said John Southward, nor was it entitled to any judgment against Southward upon the averments in the answer and cross-petition filed by said Jamison and others, for the reason that said Southward had no notice of the filing of said answer and cross-petition as we have herein-before stated.
    The Union Central Life Insurance Company had no right to this judgment, and we contend that the same is absolutely void and of no force or effect, and may be so treated wherever it is met. Wood v. Stanberry, 21 Ohio St., 142.
    1. “The jurisdiction of a court or tribunal entering a judgment in any particular case may always be inquired into, when a judgment is made the foundation of an action, in the court of a state in which it was rendered, or of any other state.”
    
      2. “A personal judgment rendered against one over whom the court has no jurisdiction, is wholly void.” Spier v. Corll, 33 Ohio St., 236.
    We maintain that the record in this case shows that the court of common pleas of Delaware county, Ohio, had no jurisdiction to render a judgment against said John Southward, and that the ^pretended judgment so rendered by it, is void and of no effect. Kingsborough v. Tousley, 56 Ohio St., 450; Greene v. Railway Co., 62 Ohio St., 67; Poe v. Dixon, 60 Ohio St., 124.
    We are aware of the fact that in an action to foreclose a mortgage, the court may award execution for the balance remaining due after exhausting the proceeds of the mortgaged property, although no personal judgment is or prayed for. Giddings v. Barney, 31 Ohio St., 80; Maholm v. Marshall, 29 Ohio St., 611.
    A personal judgment cannot be rendered upon a .cross-petition without a summons issuing thereon when the defendant is in default for answer to the original petition. Thatcher v. Dickinson, 2 Circ. Dec., 82; 3 C. C. R., 144; Bailey v. Young, 11 Circ. Dec., 257; 20 C. C. R., 546.
    
      Messrs. Abernethy & Folsom, for defendants in error.
    Only one of the many questions which were before the court below is relied upon in this court, viz.: was the finding against John Southward in the Delaware common pleas void, because no summons was issued, and served upon him giving notice of the filing of the cross-petition.
    The question may well be asked at this point, what were the rights of the different parties in the land and the mortgage debt at the time of the bringing of the suit in the Delaware common pleas?
    We believe it will not be disputed that they Avere in a general way as follows:
    1. The plaintiff, mortgagees, had an interest in the mortgage and the premises securing the same.
    2. The defendant, John Southward, being the OAvner of the land, of course, had an interest in it.
    3. He having assumed and agreed to pay a part of the mortgage indebtedness became the principal debtor, and the mortgagors became his sureties.
    4. As such sureties (the cross-petitioners) had a right to ask that they be indemnified against the debt so assumed, and they were also interested in the land, they having a right to have it applied on the debt.
    John Southward was a necessary party to the suit brought by the insurance company to foreclose its mortgage, he being the owner of the land. His co-defendants, the mortgagors, were also necessary and proper parties, they being his sureties on the mortgage debt. Section 5006, Rev. Stat.; Pomeroy on Remedies, Sec. 271; 2 Jones on Mortgages, Sec. 1394; (1) as owner of the land, and (2) as principal in said debt; 2 Jones on Mortgages, Sec. 1406; Bishop v. Douglass, 25 Wis., 696; Green v. Dixon, 9 Wis., 532.
    Under the assumption of, and agreement to pay a part of said mortgage indebtedness, John Southward became the principal debtor; in other words, he stepped into the shoes of the mortgagors, and they became the sureties. Poe v. Dixon, 60 Ohio St., 124. As sureties they had a right to be indemnified against |4,471.25 of the mortgage debt assumed and agreed to be paid by Southward and to insist that the land held by the mortgagees should first be sold and applied thereon.
    
      The mortgagors had a right, by cross-petition to set up their sale of the premises to John Southward, -his assumption of, and agreement to pay a portion of said mortgage indebtedness; and their prayer that the premises be ordered sold, the proceeds of said sale applied on the mortgage note described in the petition, and for all further relief, was the proper prayer upon which to base the decree.
    A surety may, by action, compel a principal to pay a debt after it is due. Sec. 5845, Rev. Stat. A surety may ask a court of chancery to aid in subjecting the estate of the principal to the payment of the debt without first advancing or paying the money. Stump v. Rogers, 1 Ohio, 533; Hale v. Wetmore, 4 Ohio St., 600; Section 5068, Revised Statutes.
    Under this section it was held in Kimmel v. Pratt, 40 Ohio St., 344, that a plaintiff against whom an answer demanding affirmative relief is filed, is a defendant to the cross-petition. It follows, therefore, under the same section, that if a cross-petition i¡á filed in said case asking affirmative relief against a codefenda.nt, such codefendant becomes a defendant to said cross-petition. 2 Jones on Mortgages, Sec. 1709 (4 ed.), p. 548; Nolen v. Woods, 12 Lea (Tenn.), 615; Larimer v. Clemmer, 31 Ohio St., 499.
    In construing the above section of the statute, and also in commenting upon the case of Maholm v. Marshall, 29 Ohio St., 611, the court say: “We are all of the opinion, that in a suit of this sort, no endorsement of the summons is required, whether a personal judgment and order of sale are demanded, or the prayer is that the amount due be ascertained, and the land sold to satisfy it.” Section 5097, Revised Statutes of Ohio.
    
      Yet litigants are not confined or limited to the time specified in the above section for filing their pleadings. The court or a judge thereof may, for good cause shown, extend the time for filing any pleading, upon such terms as are just. Section 5098, Rev. Stat.
    The section just quoted does not limit the court as to the time he may allow for filing any pleading. He may give one day, one month or six .months. Hill v. Supervisors, 10 Ohio St., 621.
    There is no doubt that there is a difference between the practice of code states and in states having no code, as to cross-bills or cross-petitions in equity. There is a difference as to what such pleadings may contain, as well as the rule days for the same.
    But whatever it may be in other states, it has been fixed in Ohio, both by statute and the decisions of our highest court.
    Our code authorizes a defendant to file a cross-petition asking for affirmative relief, either legal or equitable against the plaintiff, or a codefendant “touching the matters in question in the petition.” . Section 5074, Rev. Stat.
    The statute makes no difference between plaintiffs and defendants pleading to cross-petitions. Each is given until “the third Saturday after the cross-petition is filed;” not after the return day of the summons, nor after service of summons upon him. This language is significant. It presumes that every plaintiff and every defendant knows when a cross-petition is filed and prepares himself to plead to the same within the time given. Bailey v. Lee, 14 Hun, 524; 1 Bates’ Pl. and Pr., 589; Bates’ Pl. and Pr., 162; Bates’ Pl. and Pr., Sec. 1, p. 170; Draper v. Moore, 2 C. S. C., 167.
    
      We specially call the attention of the court to the case of Brown v. Kuhn, 40 Ohio St., 468.
    The decree of the court in the Delaware common pleas settling the whole controversy between all the parties, is sustained by the policy of the law in Ohio, and other states. Giddings v. Barney, 31 Ohio St., 80; Maholm v. Marshall, 29 Ohio St., 611; Hamilton v. Jefferson, 13 Ohio, 427; Boswell v. Sharp, 15 Ohio, 447; Myers v. Hewitt, 16 Ohio, 449; Moore v. Starks, 1 Ohio St., 369; Heller v. Meis, 2 C. S. C., 287.
    In some states, the doctrine laid down in the cases above cited has been recognized and finally embodied in the form of statutes. 2 Jones on Mortgages (4 ed.), Sec. 1709; 1 Jones on Mortgages, Sec. 755, p. 6672; Crowell v. Hospital, etc., 27 N. J. Eq., 650; Williard v. Worsham, 76 Va., 392; 1 Jones on Mortgages, Sec. 761a; Booth v. Insurance Co., 43 Mich., 299; Unger v. Smith, 44 Mich., 22; Hicks v. McGarry, 38 Mich., 667; 2 Jones on Mortgages, Sec. 1716, p. 556; 1 Wiltsie on Foreclosure, p. 107, Sec. 95.
    Again, “if the grantee upon purchasing a part of the mortgaged premises, assumes a certain portion of the mortgaged debt, his liability is limited to the sum assumed. If, upon a subsequent foreclosure of the mortgage he purchase the same part of the premises already conveyed to him, the mortgagee can claim of him as a deficiency, only the difference between the sum assumed by him with interest thereon from the date at which this part of the mortgage became primarily his own debt, and the like sum paid by him at the foreclosure sale.77 2 Jones Mortgages, Sec. 1713; Commissioners v. Peter, 32 N. J. Eq., 113; 2 Jones on Mort., Sec. 1711, p. 552; Halsey v. Reed, 9 Pai. Ch., 446; Klapworth v. Dressler, 13 N. J. Eq., 62; Hay v. 
      Brambell, 19 N. J. Eq., 563; Stiger v. Mahone, 24 N. J. Eq., 426.
    We especially call the attention of the court to the steps taken in the Delaware county case, as being identical with -those laid down in 2 Jones on Mortgages, Sec. 1709 (bottom p. 548).
   Davis, J.

The contention in this case is concerning the validity of a judgment against the plaintiff in error rendered in Delaware county, and which was made a lien by levy on his lands in Pickaway county. It is asserted that the judgment is void because it was rendered upon a cross-petition of codefendants of the plaintiff in error against him, upon which cross-petition no summons was issued, in an action by a mortgagee of the defendants praying for a judgment against the mortgagors on the mortgage notes, for a foreclosure of the mortgage, for sale of the mortgaged premises and for all proper relief, there being no relief asked for in the petition against the plaintiff in error and there being no averment in the petition on which to found relief.

The only allegation in the petition referring to the plaintiff in error is the following: “Plaintiff further says and it charges that said defendant, John Southward, since the filing of the said mortgage herein described, has purchased and is now the owner of said real estate subject to plaintiff’s said mortgage, and asks that he may be notified of the filing, pendency and prayer of this petition and that he may be required to answer the same as to his interest in said real estate.” Accordingly a summons was issued upon this petition and it was served upon Southward on December 3,1889. The summons required him to answer the petition on or before December 28, 1889, but no answer or other pleading was ever filed by Southward in that case. It is clear that upon this petition there could have been no personal judgment against Southward, either for the whole debt or for a deficiency after sale of the mortgaged premises; for the petition alleged no personal liability on his part. The only allegation against him was that he was a purchaser subject to the mortgage. He may well have been willing to allow his equity of redemption to go in satisfaction of the mortgage debt, and yet may have had a defense against a personal judgment. At any rate a personal judgment against him was not a “matter in question in the petition.”

Sometime after Southward became in default for answer to the petition, his codefendants, the mortgagors, filed an answer admitting the execution of the note and mortgage by them, and by way of cross-petition alleging that Southward, when he purchased the land, assumed and agreed to pay the mortgage indebtedness to the plaintiff in the action. The prayer in the cross-petition' is as follows: “These defendants * * * ask that the said premises may be ordered sold on the foreclosure of said mortgage and the proceeds of said sale be applied on the said note in plaintiff’s petition described, and for all further relief.” It will be noted that in this cross-petition no “relief” is claimed “touching the matters in question in the petition,” except the foreclosure of the mortgage and the application of the proceeds of the sale on the mortgage note, as required by the statute as it then was, and as it remained until April 16, 1900 (Revised Statutes, Sec. 5071; 94 O. L., 281, Sec. 5067). No amendment to the petition was filed, and a prayer for a personal judgment nowhere appears in the case, and no allegation appears upon which such a judgment could be founded, unless the plaintiff, the mortgagee, might lawfully do as it did do, after sale of the mortgaged premises on motion to confirm the sale and distribute the proceeds, have a finding made and judgment rendered against Southward, on the cross-petition of his codefendants. The court after finding that Southward was in default for answer or demurrer to the petition and the cross-petition, “and that the allegations of said cross-petition are thereby confessed by him to be true,” finds and adjudges as follows : “That said John Southward has not complied with the terms of said agreement * * * and that there is due said plaintiff from said John Southward in pursuance of said agreement, the sum of $4,787.83, with interest at the rate of seven per cent, per annum from date. Wherefore it is ordered and decreed by the court that the said John Southward pay said sum of $4,787.83 to the plaintiff,” etc'. This is very clearly a judgment against Southward for the whole debt; and it might very properly have been so, if the plaintiff had pleaded the agreement by Southward to pay the debt and prayed for a judgment thereon, and he had been brought into court to answer such a claim. Poe v. Dixon, 60 Ohio St., 124. But in this case the plaintiff did not make the proper averments to entitle it to a judgment for the money claimed to be due. Southward was called upon to answer that petition and thereafter he was bound to take notice of all proceedings strictly germane thereto, but was not bound to keep watch for entirely new causes of action which might be foisted into the case after he had waived his right to defend against the cause of action to which he was summoned to answer. Hence the judgment rendered against Southward cannot be sustained unless it can be done under the cross-petition, upon which no summons was issued.

After rendering judgment against Southward for the whole debt, as above stated, the court ordered that taxes and costs should be paid and that the residue of the money arising from the sale “be applied in liquidation of plaintiff’s claim as a payment thereon. And there still remaining due plaintiff from said defendant, John Southward, the sum of $878.60 for which execution is awarded against him,” etc. It has been urged in argument that this is merely an order awarding execution for the balance remaining after sale of the mortgaged property and application of the proceeds upon the plaintiff’s claim. This argument does not seem to give due weight to the fact that before awarding execution for the balance, and before applying the proceeds of the sale upon the plaintiff’s claim, the court found the whole debt to be due from Southward to the plaintiff and decreed that he should pay the whole amount and awarded execution therefor. This of itself has been held, in Illinois, to be error. Rooney v. Moulton, 60 Ill. App., 306. Nor does this argument seem to take account of the want of any averment upon which personal liability could be fixed upon Southward for any amount, except as it apears in the cross-petition.

It was pointed out by Granger, C. J., in Brown v. Kuhn, 40 Ohio St., 485, that “the only provision for a summons upon a cross-petition is in Sec. 5074,” now Sec. 5070, Rev. Stat.; but does it follow that no' summons can issue, or that none may be required, in cases other than the one provided for in that section? Is this inquiry justly to be answered by the maxim, eoopressio unius est exclusio alterius? We think not. It is a fundamental doctrine in the law of procedure that a party who is affected by the judgment must have his day in court, which is understood to mean that he shall have due notice of the claim against him which may result in judgment, and that he shall have an opportunity to defend against it. The failure of the legislature to specifically prescribe the issue of summons, cannot deprive a party of his constitutional right to due process of law, and the legislature can not be presumed to have intended to do so. Hence, the question for consideration here is not so much what the statute provides, as whether the constitutional guaranty of due process of law has been violated. 10 Am. & Eng. Ency. Law (2 ed.), 296, and cases there cited. Of course if a party had an opportunity to be heard and neglected to avail himself of it, he cannot complain of any invasion of his constitutional right when there is an ultimate decision which is adverse to him. If in the present case Southward did have due notice of the claim which was ultimately formulated in a. judgment against him he cannot be heard to dispute the judgment; but the whole contention turns on the question whether he did in fact have such notice. So long as a cross-petition is strictly confined to “matters in question in the petition” there can be no doubt that the summons issued on the petition would be sufficient to sustain a judgment on the cross-petition; but when the cross-petition sets up matters which are not drawn in question in the petition, and seeks affirmative relief against a codefendant, of a nature totally different from that sought in the petition, we think that the plainest principles of justice and constitutional law require that the party who is to be bound by the judgment should have notice of the claim made against him, and that in such case a summons issued on the petition does not confer jurisdiction to render judgment on the cross-petition. Besides, since the cross-petition was adopted in the code from equity procedure, if the statute is not explicit as to the procedure, the equity practice, “as modified by the spirit of the code, must be resorted to; and under the chancery practice, when a defendant sought relief against a codefendant as to matters not apparent upon the face of the original bill, he must file his cross bill making parties thereto such of his codefendants and others as was necessary to the relief sought, and process was necessary to bring them in.” Fletcher v. Holmes, 25 Ind., 458; Pattison v. Vaughan, 40 Ind., 253; Bevier v. Kahn, 111 Ind., 209; Edwards v. Woodruff, 90 N. Y., 396. And see Spoors v. Coen, 44 Ohio St., 497, 502, 505, per Minshall, J. The judgment against Southward upon the cross-petition, whether it was upon the election and request of the plaintiff or not, was therefore null and void. Spier v. Corll, 33 Ohio St., 236; and it was competent to attack it in this proceeding. Kingsborough v. Tousley, 56 Ohio St., 450.

In Giddings v. Barney, 31 Ohio St., 80, it was held that a personal judgment cannot be taken against a mortgagor, in an action to foreclose a mortgage, unless the petition contains a prayer for such judgment. We have already emphasized the fact that in this case neither the petition nor the cross-petition contained such a prayer. In the opinion in the case last cited, Boynton, J., said: “We are not, however, to be understood as holding that in equity cases, the court may not give a personal judgment, where equity requires it. McCrory v. Parks, 18 Ohio St., 1; Reed v. Reed, 25 Ohio St., 422. Nor is it intended to deny the power of the court, in an action to foreclose a mortgage, where the court has ac quired jurisdiction of the person of the mortgagor, to award execution for any balance due, after the proceeds of the sale of the mortgaged premises have been exhausted. Hamilton v. Jefferson, 13 Ohio, 427; Myers v. Hewitt, 16 Ohio, 449, 456; Moore v. Starks, 1 Ohio St., 369, 373; Maholm v. Marshall, 29 Ohio St., 611, 615.” We may add to this that judgment for such balance cannot be rendered against a person who has assumed and agreed with the mortgagor to pay the mortgage debt unless the mortgagee. elects to avail himself of the agreement to pay, and the proper averments are made against the person assuming the .mortgage, and the court has acquired jurisdiction over his person. Brewer v. Maurer, 38 Ohio St., 543, 554. In this case, as we have said, these conditions are not found, so that also upon the theory that the judgment in this case was a judgment for the deficiency, the judgment was invalid.

In Brown v. Kuhn et al., 40 Ohio St., 468, one of the points decided is that where a cross-petition in error is properly filed against a party already in court, in the pending case on error, no summons in error should be issued for such party, and with that decision the court is still satisfied; but so far as remarks in the opinion of the court in that case conflict with the views here expressed, they are disapproved.

The judgments of the circuit court and the court of ■common pleas are

Reversed.

Burket, Spear, Shauck and Price, JJ., concur.  