
    Bartlett Larimer v. George Clemmer and others.
    1. In an action for the sale of mortgaged premises and for a personal judgment, pursuant to the act of 1864 (S. & S. 575), no indorsement on the summons as to the amount or nature of the claim is necessary, the oase being governed in that respect by sec. 57 of the civil code; but where an indorsement was made which truly indicated the amount for which judgment was afterward taken, and contained the further statement that the plaintiff sought “ equity relief,” a personal judgment and order of sale, rendered on default, will not be reversed.
    2. Where in such action judgment was rendered on the note secured by such mortgage, against the maker and the payee as indorser who had assigned the note and mortgage to the plaintiff, and an order of sale was made, the fact that the payee had not been served with process constitutes no ground for a reversal of the judgment or order as to such maker.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Defiance county.
    George Clemmer executed a promissory note to David "W". Clemmer, and with his wife executed a mortgage to David W., on real estate, to secure its payment. David 'W. Clemmer indorsed the note to Larimer, who brought suit against him and George Clemmer and wife. The first cause of action in the petition was on the note, and the other cause of action was on the mortgage. The prayer was for judgment against George Clemmer and David’W. Clemmer as to the note, and for an order that on failure to pay the judgment the land be sold and the proceeds applied in satisfaction of it. The summons was indorsed: “Plaintiff claims judgment for $1,400, with 8 per cent, interest, June 2, 1876, and equity relief.” The summons was returned served as to George Clemmer and wife, but not found as to David W. Clemmer. None of the defendants appeared. Judgment was rendered in the court of common pleas by default against George Clemmer and David ~W. Clemmer'for the amount due on the note; and an order was made, also on default, that unless George Clemmer and David W. Clemmer, within ten days, pay to Larimer the amount of the judgment, that the lands bo sold and the proceeds of the sale applied to the satisfaction of the judgment and costs.
    The defendants below joined in prosecuting error in the district court, where the judgment as to David W. Clemmer and the order of sale were reversed, and the judgment as to George Clemmer was affirmed. And Larimer, in this court, assigns for error that the district court erred in reversing the order of sale.
    
      
      Hardy $ Johnson, for plaintiff in error:
    1. The summons was properly indorsed. Maholm v. Marshall, 29 Ohio St. 611; Act of 1864 (S. & S. 575).
    2. The reversal as to David W. Clemmer furnished no reason for a reversal of the order of sale.
    
      H. Newbegin, for defendant in error:
    I. The summons was not so indorsed as to authorize an order*of sale. Civil Code, sec. 57 ; Williams v. Hamlin, 1 Handy, 96 ; Finch v. Evers, 25 Ohio St. 82 ; Hamilton y. Miller, 31 Ohio St. 87. In Maholm v. Marshall, 29 Ohio St. 611, there was an appearance.
    2. There was a joint judgment, and it was voidable as to George Clemmer (Newbury v. Munshower, 29 Ohio St. 617), and invalid as to his wife.
   Oicby, J.

There has been some doubt whether the provision of the civil code (section 57), in relation to the indorsement to be placed by the clerk on a summons, has been modified by the act of 1864 (S. & S. 575), with respect to an action to foreclose a mortgage where a personal judgment is sought. In Maholm v. Marshall, 29 Ohio St. 611, the judge who delivered the opinion, referring to a casein which an amount was stated in the indorsement, said that the judgment “ should be limited to the amount claimed to be due, indorsed on the summons.” The indorsement would mislead, if judgment for a larger sum could be permitted. But we are all of opinion that in a suit of this sort, no indorsement of the summons is required, whether a personal judgment and an order of sale are demanded, or. the prayer is that the amount due may be ascertained and the land sold to satisfy it.

In this case, however, the indorsement, though, unnecessary, did not render the process invalid or the judgment in the action voidable. The amount for which judgment was rendered was plainly indicated in the indorsement; and the statement that the plaintiff wanted, besides, equity relief,” could not mislead, for it fairly apprised the defendants served that Larimer sought, in addition to the personal judgment, relief of an equitable character; and an order for the sale of mortgaged premises is such relief.

Newburg v. Munshower, 29 Ohio St. 617, relied on to show that the judgment being void as to David W. Clemmer, was voidable as to George Clemmer, does not support the proposition. There the liability was joint, while here it is several. Besides, the district court affirmed the judgment as to George Clemmer, and no one has sought in this court to disturb it. Nor is the question presented whether David W. Clemmer, who had parted with all his interest in the mortgage, could properly be made a party in the suit to foreclose it. True, the act of 1864, above referred to, authorizes a personal judgment in such a suit, but the question whether the provisions of the civil code as to parties have been modified by that act, and if so to what extent, has not been directly presented, and we will express no opinion upon it. In King v. Safford, 19 Ohio St. 587, as in this case, the right to make the objection was waived. See also 21 Ohio St. 142, 277; 23 Ohio St. 579.

Further objection is made, that by the terms of the order, there can be no sale until there is default in payment of the judgment as to David W. Clemmer; and that as there is yet no liability on the part of David "W. to pay the judgment, the order of sale can not be enforced, and hence was properly reversed. But for the purpose of subjecting the land to the payment of the mortgage debt, no personal judgment, such as is authorized by the act of 1864, was ever necessary. Nor is a mortgagee, who has parted with all interest in the mortgage, a necessary party in a suit to subject the property to the payment of the debt. Ludlow v. Grant, 8 Ohio St. 1. The judgment rendered in this case, though reversed as to David W. Clemmer,' as clearly indicated the amount due on the mortgage as if he had remained a party, or the amount due had been separately found; and, notwithstanding the reversal as to David W., the right to proceed with the sale, unless George Clemmer made payment, remained unaffected as to George Clemmer and his wife. To reverse as to one of several defendants is virtually to strike his name from the judgment and order. The liability on the mortgage, moreover, in no way depended on the validity of the personal judgment; and the amount actually due on the mortgage having been ascertained—it matters not in what form the finding was made— the order of sale in default of its payment was properly made, and the district court erred in reversing it.

Leave granted, and judgment reversing the order of sale reversed.  