
    Endel v. Leibrock.
    1. A writ of attachment under the code, without the requisite affidavit, is void.
    2. The seizure of property of a non-resident debtor, upon whom service of summons can not be made on such void writ, does not give the court such jurisdiction over the defendant or his property as will authorize a service by publication, or a judgment in the action.
    3. The affidavit required by section 192 of the code forms no part of the pleadings in the case, and should not be incorporated in the petition, but if the omission of a separate affidavit can be cured by a showing in the petition, it should contain all the requisites of an independent affi- • davit and be duly verified.
    
      4. “Whore the petition, treated as an affidavit for an attachment, does not show that the claim sued on is just, nor state the amount the affiant believes he ought to recover, and is verified upon belief merely, it is insufficient to cure the omission of a separate affidavit.
    6. In an action for money only, where an attachment is sued out and levied on lands of a debtor, a mortgagee of the land seized in attachment is not a proper party to the action.
    6. In such a case the attaching creditor can not have relief in equity to satisfy his claim until after he has obtained a judgment and exhausted his remedy at law.
    7. To bar the equity of redemption of a non-resident mortgagor, upon whom service of summons can not be made, such mortgagor should be constructively served, as required by the code, and a judgment of foreclosure and sale, without such service, is no bar to an action to redeem.
    Error. Reserved in the District Court of Seneca county.
    
      The above plaintiffs, as heirs of their father, Henry Endel, Sen., brought their action, to redeem a mortage on an in-lot in the city of Tiffin, wlrch had been sold under certain legal proceedings and order of sale made against their father. The petition alleges that these proceedings were ineffectual to bar the equity of redemption.
    Lcibrock is in possession, and claims title by virtue of a sheriff’s deed made upon a sale under said proceedings. To impeach the validity of that title, it is averred that, in 1859, their father, Henry, and mother, the defendant, Christina, were residents of Seneca county, and, on the 28th of March of that year, to secure a debt to one Nighswander, made to him a mortgage on this lot, which was duly recorded, and which, by transfer, became the property of John Lauer, December 28,1863; that their father had, in 1859, left his place of residence, and had been absent and unheard of for more than ton years after 1863, and was, in fact dead, having died seized of this equity of redemption; that, on the 28th of February, 1865, one David Biehler commenced proceedings in attachment in the. court of common pleas, against said Henry, as a non-resident of the state, to collect an alleged debt of some $300, under which this lot was seized upon the writ of attachment; that, before service was completed, Lauer, as assignee of the mortgage, appeared and filed his answer and cross-petition, setting up his mortgage, claiming priority over the attachment, and asking for a foreclosure and sale.
    Such proceedings were had that the court, on the 19th of May, 1865, rendered a judgment in favor of Biehler, on his attachment, for the amount claimed to be due, found amount due on the mortgage, and its priority, and ordered a sale to pay both claims. Upon this judgment, the lot was sold to Mary Zimmer, the sale confirmed, and a sheriff’s deed made to her. The money realized ($600), after payment of costs, was applied to pay off the mortgage, and the balance on Biehler’s judgment. In January, 1868, Zimmer conveyed to defendant, Leibrock. The possession has been in Zimmer and Leibroek, since the sheriff’s deed, January, 1868.
    It is averred that these legal proceedings are no bar to plaintiffs’ right to redeem, because neither their father nor mother were parties thereto, by service, actual or constructive, or otherwise.
    The prayer is for an account of rents and profits, and for redemption. The mother, Christina Endel, a defendant, by answer, asks for like relief on the same ground.
    Jacob Leibroek, principal defendant, sets up these legal proceedings, and his title under the sheriff’s deed, and insists that the equity of redemption is barred.
    Upon a trial in the common pleas, judgment was rendered against plaintiffs, and, upon the overruling of their motion for a new trial, a bill of exceptions was taken.
    Upon this trial, the plaintiffs, to maintain the issue on their behalf, after evidence raising the presumption that their father was dead at the commencement of this action, also put in evidence the complete record of the legal proceedings under which Leibroek claims, and rested. No other evidence was offered in the case.
    As the case turns upon the legal effect of these proceedings, a statement of them at some length is necessary.
    On the 8th of February, 1865, David Biehler commenced an action against Henry Endel and John Lauer. His petition contains two causes of action — one on a note for $160, and one on an account for $101.25, which he says are due. After stating these, the petition concludes :
    “ The plaintiff further says that the said Henry Endel is a non-resident of the State of Ohio, and a resident of the State of California; that the said Henry Endel is the owner in fee simple of the east half of in-lot numbered 600, in the second ward of the city of Tiffin, Seneca county, Ohio, and that one John Lauer claims some interest in and to said premises above described; that a service of summons can not be had upon the defendant, Henry Endel, in this state. The plaintiff therefore prays judgment against the defendant, Henry Endel, for the said sum of three hundred and three dollars and seventeen cents, together with interest thereon, from and after the 8th day of February, a. d.. 1865. W. R. & H. Noble, Attorneys for Plaintiffs.”
    
    The verification reads thus:
    
      “ The State of Ohio, Seneca county, ss.: David Biehler being duly sworn, according to law, says that he is the plaintiff in this action; that he believes the statements and allegations of the foregoing petition to be true.
    “David Bieeler.
    “ Sworn to before me, by David Biehler, and subscribed in my presence, this 8th day of February, a. d; 1865.
    •“W. M. Dildine, Clerk.”
    
    After giving copies of the note and account sued on,, there is a precipe which reads:
    “ Clerk will issue summons and order of attachment, in this action, against the defendant, Henry Endel, indorse’ amount claimed, $303.17, also summons for John Lauer,. returnable according to law, directed to the sheriff of Seneca, county, Ohio. H. Noble.”
    Summons was served on Lauer, hut is lost, and forms no’ part of the record. No summons appears to have been issued to Endel. On the same day, February 8, 1865, a writ of attachment was issued, in regular form, against the lands and goods of Endel, to satisfy Biehler’s claim. This writ recites: “ Whereas, David Biehler has this day, on the necessary affidavit being filed, obtained an order of attachment against Henry Endel ” — but no affidavit, other than the verification to the petition, appears of record.
    The writ was returned the next day, showing that this lot had been seized, inventoried, and appraised, as required by law. April 4,1865, Lauer filed his answer and cross-petition, in which he joins Christina Endel, wife of Henry, who was not made a party in the original action. He sets up the note and mortgage made by Henry and Christina, of which he was the owner by assignment, on this in-lot, and prays that said Henry and Christina be made parties to this answer and cross-petition, and for a judgment of foreclosure and sale. Copies of note and mortgage are filed, and the following verification:
    “ The State of Ohio, Seneca county, ss.: H. Noble, attorney for John Lauer, being duly sworn, according to law, says that he is one of the attorneys of record of the said John Lauer in this .action; that this claim is founded upon a written instrument for .the payment of money only; that such written instrument is now in his possession, as such attorney, for collection; that the said defendants, Henry Endel and Christina Endel, his wife, are non-residents of this state, and that no service of a summons can be served on either of them in this state, and that he believes the statements of the foregoing answer to be true. H. Noble.
    
      “ Sworn to by H. Noble, before me, and subscribed by him in my presence, this 4th day of April, a. d. 1865.
    “ "W. M. Dildine, Clerk.”
    
    No other affidavit was filed to authorize service by publication.
    And afterward, to wit: on the 19th day of May a. d. 1865, proof of publication of notice was filed in the clerk’s office of said court, which reads as follows, to wit:
    “ Notice — Henry Endel and Christina Endel, now residents •of the State of Ohio, will take notice, that David Biehler •did, on the 8th day of February, A. d. 1865, file his petition, in the Court of Common Pleas of Ohio, against said Henry Endel and one John Lauer, praying for a judgment against •said Henry Endel, for the sum of three hundred and three and seventeen one-hundreths dollars, on a book account, and rate with interest thereon, from the 8th day of February, 1865. And that on the Ath day of April, a. d. 1865, the said John Lauer filed his answer and cross-petition therein, •claiming that said Henry Endel and Christina Endel gave a mortgage to one John Nighswander, on the east half of in-lot numbered six hundred, in the second ward of Tiffin city, Ohio, to secure the payment of $328.92, according to & certain note in said mortgage referred to, and that said note and mortgage has been duly assigned by said John H. Nighswander, and now are owned and held by the said John Lauer, and praying that the said Henry Endel may pay ■said sum, now claimed to be due, with ten per cent, interest thereon, from the 2d day of July, a. d. 1868, or that said premises be sold to pay said claims, and that the said Henry Endel and Christina Endel, be required to answer said plaintiff’s petition, and to answer and cross-petition, of the said John Lauer, before the third Saturday after the 25th •day of April, a. d. 1865. By W. P. & PI. Noble.
    “ The State of Ohio, Seneea county, ss. John M. Meyers, being duly sworn according to law, says, that I am the publisher of the Seneca Advertiser, a newspaper printed, and in general circulation in said county of Seneca ; and that a •copy of the annexed notice was published in said paper, on <the 1th day of March a. d. 1865, and continued for six con-secutive weeks thereafter. John M. Meyers.
    “ Sworn to before me, and subscribed in my presence, this :8th day of May, a. d. 1865. W. M. Dildine, Clerk.”
    
    On the same day judgment was rendered on the cross-petition for a foreclosure of the mortgage, and on the plaintiff’s claim in attachment, and in default of payment the lot was ordered sold.
    The journal entry recites: “ This day came the plaintiff, ¡'by his attorneys, and made proof that he caused a notice, containing a summary statement of the object and prayer •of said petition, notifying the said defendant, that he was required to answer the said petition, on the-day of -, a. d. 1865, to be published six consecutive weeks in the Seneca Advertiser, a newspaper printed in said county ■of Seneca, and that the first of said publications being on the 7th day of March, a. d. 1865, and neither of said parties requiring a jury, this cause .came on to be beard, upon the petitiou of the plaintiff’, and the answer and cross-petition of John Lauer, proofs, exhibits, and testimony, and was argued by counsel on consideration whereof, and the court being fully advised in the premises, do find, that,” setc.
    
      
      Hall § Pittenger and McCauley $ Pennington, for plaintiffs in error:
    This order of attachment was issued without any affidavit whatever, as required by section 192 of the code.
    There are some things stated in the latter part of the second cause of action in the case of Biehler v. Endel, that' would have been proper parts of an affidavit for an attachment, but “ a defective affidavit can not be sustained by averment in the petition.” Harrison v. King, 9 Ohio St. 388.
    Taking all the averments in the petition, they are not sufficient to authorize the issuing of an order of attachment. If the petition contained a statement of all the-facts for an attachment as required by section 192 of the code, still there is no authority for issuing the order. Such statements in the petition would be mere surplusage. The-code requires certain distinct matters to be stated by affidavit to authorize an attachment. These matters are to be plainly stated for the inspection of the clerk, and upon which he issues the order. They are different from the allegations-of the pleading. The statements and legal effect of pleadings are matters addressed to the court; the statements-of such affidavit have no legal effect except as they state-the plain facts required by the statute.
    The verification of this petition contains no statement beyond what is necessary for a mere verification, and this-is sworn to only as a matter of belief.
    The clerk therefore issued this order of attachment without any authority whatever.
    But the irregularities of the case did not stop here. After the service of the order of attachment, the plaintiff proceeded to publish notice to the defendant to complete the-jurisdiction over his person. Before this publication could be legally made, an affidavit, as required by section 71 of the code, should have been filed. This affidavit is-wholly wanting. Here again it will be seen that some parts of what such an affidavit should contain are stated in the verification to the answer of th.e defendant. Lauer;: •and it will be noticed that this verification is made April 4, 1865, about three weeks after the notice was first published. •
    .The notice to the defendants, published as stated, is wholly insufficient to give the court jurisdiction over them, •or the property sought to be appropriated.
    Section 72 of the code requires that the notice must contain a summary statement of the object and prayer of the ■petition, mention the court wherein it is filed, and notify the person or persons thus to be served, when they are required to answer.
    This notice, if everything prior to it were regular, is not •sufficient to bring the defendants before the court, and a judgment resting on it for jurisdiction over the person is simply void. Moore v. Starks, 1 Ohio St. 369 ; Calkins v. . Johnson, 20 Ohio St. 539; Adams v. Jeffries, 12 Ohio St. 253.
    The notice also fails to give a description of the prop- • erty attached, or to state that an order of attachment was issued in the case.
    The notice should have stated that an order of attachment had issued, and give a description of the property seized under it. Clarke v. Southgate, 2 Western Law Gazette, 44; Moses v. McKim., 2 Western Law Monthly, 15.
    There is yet another feature of the case that ought not to be overlooked, for if the judgment recovered by the the plaintiff should be void, the decree obtained by the defendant, Lauer, might possibly be valid, and that alone might sustain the sale made under the decree taken in the .■case.
    In the first place, Lauer w7as not properly made a defendant. He held a mortgage on the lot attached. The attachment, if valid, created a lien, and after judgment in the case in which the attachment was issued, a bill by the plaintiff against the owner of the lot, and Lauer, a lien-'holder would have been proper to marshal liens. But in this case Lauer was improperly made a party, and had no night to a decree on cross-petition. Code, § 84.
    
      But a decree taken by Lauer under these circumstances1 would probably be merely erroneous, and not void.
    But his decree' is void for wan* of notice to the defendant, Endel. The failure to mention the court wherein the cross-petition is filed, follows into the part of the notice given by Lauer. The notice says that “ John Lauer filed his answer and cross-petition therein.”
    And if the proceedings by which jurisdiction over either the person of Endel, or the land attached, were so defective-as that he did not have his day in court, both judgment and-decree are void. Calkins v. Johnson, 20 Ohio St. 539.
    
      Gr. JE. Seney, for Leibroek, one of the defendants in error :
    If the proceedings under which the sale was made are-invalid and make no title to the purchaser, then, we insist that Leibroek, in equity, is subrogated to the rights of the-creditor against the debtor, and has an equitable lien upon the premises as against the plaintiffs, for the sum ($600) for which the premises were sold. 2 S. & C. 1149.
    
    
      We insist, further, that the plaintiffs must do equity if they would have equity. Upon this maxim, they can have no relief before paying, or offering to pay, the $600, or showing this sum satisfied by rents and profits.
    Standing, then, as do both parties, in a court of equity, we, upon our part, ask that that which is equitable, and-that only, be done. The equity of the plaintiffs in these-premises, if any they have, is a mere right to redeem. Our equity, represented as it is, by the mortgage, and the debt for which the attachment issued, in dollars and cents, exceeds $1,300. We submit, therefore, that until this sum is satisfied, the plaintiffs have no right to our humble home. Nothing short of satisfying the whole debt meets the demands of the law. Satisfaction of a part is not a satisfaction of the whole. Satisfaction of the mortgage debt, even by rents and profits, is no satisfaction of the debt the attachment represents, nor is it a satisfaction of the sum' ($600) we paid for the property.
    
      The title to these premises is not to be defeated by offensive technicalities. The case, we must bear in mind, is in equity. Equitable relief, and none other, is sought. Dealing in equities, equitable considerations control. The proceedings supporting this title are in attachment and foreclosure. Their construction must be liberal — liberal to the utmost — liberal to an extent not forbidden by positive law. "We concede their irregularity. Possibly they are erroneous. Surely they are not void. The jurisdiction of the court was, as we think, full and complete. Upon the other-side, it is claimed that jurisdiction is wanting, for the reason that the order of attachment was issued without the affidavit required by section 192 of the code. Was this the fact, it would not, in our judgment, make the proceedings void. Jurisdiction in the action is not dependent upon the-affidavit which is required for an order of attachment.. The attachment is not the action, but a proceeding ancillary to the action. If there is jurisdiction in the action,, there is jurisdiction also in the ancillary proceeding. So that, the want'of an affidavit required by a proceeding ancillary to the action, can not defeat jurisdiction, properly acquired, in the action. Assuming then, for the present, that the court had jurisdiction in the action, by proper service upon the defendant, the issuing of the order of attachment without the affidavit required by section 192 of the code, is a mere irregularity, or error, for which the proceeding, in this particular, might be reversed. If the defendant was properly served in the action, in legal judgment, he was present in court when these proceedings were had. Being thus present, his failure to object to the final judgment, if not to what preceded it, waived that which is now urged against the proceeding.
    All that section 192 of the code requires to be stated in an affidavit for an order of attachment, appears in the petition filed in the case. This petition, it will be seen, is verified by the oath of the plaintiff. So that, the facts authorizing an order of attachment to issue, were stated by the plaintiff, upon his oath, and in that which is of record in the case. It would have been better practice if these facts had been stated in a separate and distinctpaper. This irregularity, great as it may be, does not vitiate the proceedings and make this title, otherwise perfect, worthless. The same irregularity appears in the case of Harrison v. King, 9 Ohio St. 388. In this case, the court say the affidavit and order of attachment constitute no part of the pleadings in the action, and the grounds for an attachment should not be stated in the petition. The case, it will be observed, was before the court upon error to an order refusing to discharge an attachment, The irregularity referred to, was not made a question in the case. The court spoke of it as incorrect practice. In Crawford v. Sutterfield, 27 Ohio St. 421, the court say it is not good pleading to copy a written instrument into the pleading, and upon a motion for that purpose the pleading would be reformed. But when it has been done without objection, and- the petition shows facts sufficient to make an action, the judgment will not be reversed. These adjudications show, as we think, the unimportance of the objection urged against the jurisdiction of the court, in the case made by the proceedings we are considering.
    But it is urged that the proceedings are void because service by publication of notice was not made in the manner and form prescribed by section 71 of the code. This section requires an affidavit to be filed that service of a summons can not be made within the state, and that the case is one in which service may be had by publication of notice. The petition, it will be noticed, contains all that section 71 requires to be stated in the affidavit, and is, as we have already said, verified by the oath of the plaintiff in the action. The facts which authorized the publication of notice, we repeat, were sworn to, and the filing of the petition made them of record in the case. Had they been stated in an affidavit, instead of a pleading, the proceeding, according to the law of the other side, would be free from objection. This irregularity has the same dimensions as the one first considered. Upon the strength of the two cases cited, 
      Harrison v. King, 9 Ohio St. 888, and Crawford v. Butterfield, 27 Ohio St. 421, it is of no moment. We submit, therefore, that the maintenance of the title, made by the proceedings we are considering, is a matter of the first importance. It ought not to perish if that which even savors of law will save it. The petition contains all that sections '71 and 192 of the code require to be stated in the respective .affidavits for which these sections provide, and is verified by an oath. The petition and the oath are matters of record. Give the petition, then, the force and effect of an .affidavit for an order of attachment, and also of an affidavit authorizing the publication of notice.
    There is another ground upon which jurisdiction in this proceeding is assailed. The plaintiff's-say the published notice falls short of what is required by section 72 of the code. This section provides that the notice shall contain .a summary statement of the object and prayer of the petition, mention the court wherein it is filed and notify the person when he is required to answer. The purpose of a notice is the same as that of a summons. The summons notifies the defendant that he has been sued and the same thing, precisely, is done by the notice. The summons is served by delivering a copy to the defendant, or by leaving one at his place of residence. The notice is served by publishing it in a newspaper. When the summons is served, or the notice published, the defendant is in court. Service of the summons by copy at the defendant’s residence is constructive, yet it gives jurisdiction over the person. Service by publication of notice is constructive, and gives jurisdiction in the pending proceeding. We submit, therefore, that the notice and the summons are, in effect, one and the same.
    We submit, therefore, that the provisions of section 72 that the notice contain a summary statement of the object and prayer of the petitiou, and state the time for answer, is merely directory, and that neither statement is essential to jurisdiction.
    The notice in the case before us, is all that is required by the law applicable to the the case. Under it, the court had jurisdiction in the proceedings as a foreclosure, if not in attachment. As a proceeding foreclosing a mortgage, we urge that the notice is sufficient.
    It contains, as we think, a summary statement of the object and prayer of the cross-petition, mentions the court wherein it is filed, and states the time when answer is required. The plaintiffs say that Lauer was not a proper partyr Whether in such an action, founded as it is upon a debt, a mortgagee of the debtor may intrude, or be summoned, and foreclose his mortgage, is a matter we need not discuss. Sufficient is it to say, that the irregularity, if such it would be, would not make Iroid a sale, made under the proceedings, after its confirmation, and when the purchaser is in possession under his deed.
   Johnson, Chief Judge.

The plaintiffs allege that these proceedings were no bar to their right to redeem.

It is an elementary principle that no man’s rights should be adjudged until he has had his day in court.

When judgment is authorized by statute, upon constructive service, the statutory method of acquiring jurisdictions should be substantially followed, or the person is not bound.. This substitute for personal service arises out of the necessity of the case, and should be complied with to give-jurisdiction over the property seized.

From this record it appears, that on the 8th day of February, 1865, Biehler, as an attaching creditor, commenced an action against Henry Endel, father of plaintiffs, then living, in which Lauer, his mortgagee, was also coupled as a defendant. Two causes of action are stated in the petition against Endel alone, one upon a note made in California, bearing a special rate of interest, for $160, and the other on an open account.

In addition to the averments proper to state these causes-of action, the petition also alleges that Endel is a non-resident of Ohio, upon whom service can not be made in this-state ; that he owned the lot in controversy in the county,, and that the defendant Lauer had some interest in it.

These averments were properly no part of the petition. It is verified upon belief merely.

There are numerous errors and 'irregularities in this re cord, for which it would be reversed, but we will only notice those which we regard as affecting the jurisdiction of the court, to make a valid sale of the property.

There was no personal service, nor was there any foundation laid for constructive service.

In an attachment proceeding, which is ancillary to the-action, where personal service can not be made, service by publication can not be made, unless an attachment is lawfully issued and property taken under it, or reached by garnishee process, which the court may act on, and no attachment can issue without the requisite affidavit.

Section 192 of the civil code requires, that before the writ issue, an affidavit must be filed, showing the nature of the-plaintiff’s claim, that it is just, the amount affiant believes he should recover, and the existence of some one, at least,, of the specified grounds for an attachment.

No affidavit was filed, and unless the petition can be looked to, and found to supply this important omission, the writ was void, and no -jurisdiction was acquired by a seizure of the land under it, and if no valid seizure was made, no service by publication could be made.

In Harrison v. King, 9 Ohio St. 388, it was held that the-affidavit and order of attachment formed no part of the-pleadings, and that the grounds for an attachment should not he stated in the petition. "We may assume, however, as was.held in 17 B. Mon. 321, that if the petition contains all the showing necessary in an affidavit, and is properly verified, the omission would be cured, without so deciding, as an examination of the record shows it is fatally defective, as an affidavit for an attachment. The petition, or rather the surplus allegations thereof, do not purport to follow the requirements of section 192 of the code.

There is no statement that the claims sued on are just— .-a very essential feature of an affidavit — nor of the amount affiant believes he ought to recover. The allegation in the petition, of the amounts due on the note and account, sworn to on belief only, is not a showing that the claims .are just. The petition only shows that he believes there is so much due on, the note and account, but whether they are just claims in his favor, which he truthfully believes he .should recover, is not shown. Dunlevy v. Swartz, 17 Ohio St. 640; Garner v. White, 23 Ohio St. 192.

Without noticing the other defects apparent on the record, such as the omission of an affidavit for publication, •as required by section 71 of the code, or that the notice .published was defective, in not stating the court in which the case was pending, and in not stating a summary of the •object of the petition, and in being misleading as to the nature of the causes of action and amount sued for, we think the fact that there was not the requisite affidavits to authorize the issuing of the attachment, renders all subsequent proceedings under it void.

It only remains to inquire if the court acquired juris■diction to make this sale, under the cross-petition of John Lauer, who was joined as a defendant.

He was served, and filed a cross-petition, setting up a mortgage made by Henry Endel, the condition of which 'had been broken, and asking for a foreclosure. He was in no sense a proper party to the causes of action stated in the petition. They were for a money judgment against Endel alone. Until judgment was rendered thereon against Endel, and levied on the land mortgaged to him, or sought to be sold upon final judgment in attachment, the controversy could not affect his interests in the land, and he had no interest in the action itself. The petition averred that Lauer had some interest in the property that was afterward attached, as the reason for making him a defendant.

By section 84 of the code, “ any defendant, who is properly made a defendant, may claim, in his answer, relief touching the matters in question in the petition, against the plaintiff, or against other defendants in the same action.”

In Harrison v. King, 9 Ohio State, 383, and in Ward v. Howard, 12 Ohio St. 158, the principle is settled that other attaching creditors can not become defendants in a prior-attachment, for the purpose of asserting their claims against the property, as they are not proper parties.

Eor the reasons assigned in these eases, the mortgagee is not a proper party defendant, in an attachment of the; property subject to his mortgage. As was then said, his. interest is connected with the special proceedings in attachment, and not with the matters stated in the petition. Hillier v. Stewart et al., 26 Ohio St. 652, is also in point, and decisive.

Again, it is a fundamental rule in equity that it will not entertain a bill for relief, in an action at law, until the legal remedy is exhausted. Biehler’s action was one at law. Until after judgment at law, and a failure to make the-money under his attachment, or upon execution, he had no right to compel the mortgagee to foreclose his mortgage, so that he might reach the mortgagor’s equity of redemption.

But, assuming that we are in error in this, and that Lauer, as mortgagee, could be made a party, and his-mortgage foreclosed in the attachment suit, still the proceedings on this cross-petition were fatally defective. As. the court acquired no jurisdiction over the property, by by the attachment, none could be acquired under the cross-petition, unless the proper steps were taken, as in an independent action to foreclose his mortgage. Service by publication was a condition precedent to foreclosure, the mortgagor not being before the court already. His cross-petition was not filed until April 4, 1865. The notice was first published March 7,1865, and for six consecutive weeks thereafter, so that four of those publications were prior to the commencement of his cross-action, and Endel was notified to answer in three weeks (April 25) after it was filed.

The statute authorizing constructive service is in derogation of common right, and should be pursued substantially,.

No service could be complete, until six consecutive publications, and a judgment of foreclosure, before such service, where there was no personal service, rendered the order of foreclosure and sale unauthorized, and ineffectual to bar the equity of redemption.

Some question has been made as to the right of Leibrock, who holds under the sheriff’s deed, made under these proceedings, which we have held are no bar to plaintiffs’ right to redeem, to be subrogated to .the mortgagee, and the attaching creditor, for the amount of purchase-money paid -at the sheriff’s sale, which was applied to the satisfaction •of the mortgage and the claims of the attaching creditor.

His right to be subrogated to the mortgagee is conceded ■by plaintiffs, to the extent of the amount due thereon. As '■to this there is no controversy.

The act for the protection of purchasers at judicial sales ■(2 S. & C. 1149), provides, that in case of any sale of property on execution, the title of the purchaser shall be invalid by reason of a defect in the proceedings, the purchaser may, in equity, be subrogated to the right of the •creditor, against the debtor, to the extent that the money •paid and applied to the debtor’s benefit, and to the same extent shall have a lien on the property sold, as against all persons except bona fide purchasers, without notice. By .section 2 of that act, this right extends to all sales by order -of court, sales by executors, administrators, and guardians, and to sales for taxes.

Speaking for myself, I think this provision includes the •case before us, and that Leibrock is entitled- to be subrogated to Biehler to the amount that the purchase money went to pay a debt owing to him by Endel, but as it is perhaps premature to decide this question, it has not been passed upon.

Judgment reversed and cause remanded.  