Vermont Loan & Trust Co. v. McGregor

Pobeign Corporation — On Whom Legal Process may be Served.— Wlien a foreign corporation has no resident attorney on whom a notice of appeal may be served, such notice may be served on the resident agent of such corporation on whom process may be legally served. ■Civil Procedure — Service of Amended Complaint. — Where complaint is amended by asking reformation of certificate of acknowledgment, the service of the amended complaint is not required to be made on defendants, who are in default for want of an answer, and who are not parties to the mortgage. Same. — Section 4176 provides for the service of amended complaint on all “the defendants affected thereby,” and none other. PORECLOSURE OP MORTGAGE-WHEN OOMPLAINT IS SUFFICIENT.-A complaint containing all necessary averments for foreclosure of mortgage and for reformation of certificate of acknowledgment to such mortgage states but one cause of action. Jurisdiction — Presumption as to Record. — On this appeal the regularity of proceedings and jurisdiction of court below must be presumed, as the record affirmatively shows those facts. (Syllabus by the court.)

APPEAL from District Court, Latah County. The court erred in granting the order for writ of assistance, for the reason that the amended complaint was never served on. the defendants, Henry McGregor and .7. B. West, through whom defendant, Thyrza C. McGregor, claims equity of redemption, and therefore the right'to hold possession. Appellant’s husband, Henry McGregor, being the principal mortgagor, was ■a necessary party to the suit; and whenever the complaint was ■amended in matter of substance, a copy of such amended complaint should have been served upon him as required by statute, and without such service the judgment is absolutely void. (Code, secs. 4176, 4228.) The above sections of our code ure the same as those of California, and in several instances they have been construed by the supreme court of that state. The last case of that court directly passing upon the question is Reinhart v. Lugo, 86 Cal. 399, 21 Am. St. Hep. 52, and note, 24 Pac. 1089; Thompson v. Johnson, 60 Cal. 292. The ■appellant’s list of authorities in the latter case contains a large number of eases in point from other states. (McGary v. Pe& <ororena, 58 Cal. 92; Elder v. Bpinlcs, 53 Cal. 294; Schuttler t King, 12 Mont. 149, 30 Pac. 28; Barber v. Briscoe, 8 Mont. '214, 19 Pac. 590; Shaw v. Bryant, 66 Hun, 627, 20 N. Y. ■Supp. 785; Kittson v. Gentry, 2 Tex. Civ. App. 670, 22 S. W, 70; 1 Am. & Eng. Eney. of PL & Pr. 645.) A writ of assistance will never be granted where there is the least doubt as to whether the applicant is entitled to the same. (2 Am. & Eng. Ency. of PI. & Pr. 979, 980, notes; City of San Jose v. Fulton, 45 Cal. 316.) And a question of the insufficiency of service to give the court jurisdiction of the parties will be inquired into on a motion of this kind. (Steinbach v. Leese, .27 Cal. 295.) This court can acquire appellate jurisdiction only by compliance with the statutory requirements concerning appeals, ■and service of the notice of appeal is jurisdictional and cannot be waived. The notice of appeal must be served, and the appeal bond filed in the manner and within the time prescribed ■by the statute, or this court is without jurisdiction to hear the •appeal on its merits, and these facts must affirmatively appear from the transcript. (Idaho Code, sec. ’4808; Penny v. Nez Perees Co., 4 Idaho, 642, 43 Pae. 570; Dalzell v. Superior ■Court, 67 Cal. 453, 7 Pac. 910; Colcer v. Colusa County Superior •Court, 58 Cal. 177; State v. Conhling, 79 Iowa, 763, 44 N. W. 247; Michel v. Michel, 74 Iowa, 577, 38 N. W. 422; Sawtelle-v. Weymouth, 14 Wash. 21, 43 Pac. 1101; Goldstreet v. Newton, 2 Dak. 39, 3 N. W. 311; Bonds v. Hickman, 29 Cal. 461; Hayne on New Trial and Appeal, sec. 210, and cases cited; 'Robinson v. Temple Lodge No. 17, 114 Cal. 41, 45 Pac. 998.) The respondent is a foreign corporation, a resident of North Dakota, and Forney, Smith & Moore were its resident attorneys of record in this action, and they were the only attorneys in this action on whom appellant could make service of the notice of appeal and comply with the statute so as to confer jurisdiction on this court. (Idaho Code, secs. 3999, 4000, 4889, 4892, 4893; Hayne on New Trial and Appeal, sec. 210; Abra-hams v. Stokes, 39 Cal. 150.) The pretended service upon I. C. Hattabaugh, even if agent of respondent appointed under section 2653 of the code, is no service at all, because there is-no law authorizing the service of anything on him but a process, and a notice of appeal is not a process, and is not a compliance with section 4893 of the code. (Idaho Code, sec. 16,. subd. 6, p. 63, sees. 1870, 2653; Abrahams v. Stokes, 39 Cal. 150; Hayne on New Trial and Appeal, sec. 210.) We contend that the amendment did not change the original complaint or add a new cause of action, but only so shaped the complaint that the facts of the execution of the mortgage, as alleged in the original complaint, might be proved and the evidence of it put in legal form. The amendment related wholly to the evidence by which the execution of the mortgage should be established, and the defaulting defendants had no interest whatever in this as they were not disputing the facts, and it was a question wholly between the appellant and respondent. (Ban-bury v. Arnold, 91 Cal. 606, 27 Pac. 934-936; Keys v. Phelan, 19 Cal. 128; Hutchinson v. Ainsworth, 73 Cal. 452, 2 Am. St. Pep. 823, 15 Pae. 82; Idaho Code, secs. 4176, 4200; Newmark v. Chapman, 53 Cal. 557; Frisbie v. Fogarty, 34 Cal. 11.) The right of redemption had already expired as to all the defendants. West was among the defaulting defendants and was bound by the decree. (Wilder v. Campbell, 4 Idaho, 695, 43 Pac. 677; Barnitz v. Beverly, 163 H. S. 118, 16 Sup. Ct. Pep. 1042; State ¶. Gilliam, 18 Mont. 94, 44 Pae. 394, 45 Pac. 661; Hardy v. Herriott, 11 Wash. 460, 39 Pac. 958.) This is a collateral attack) and the regularity of the record and jurisdic-lion will be presumed and cannot be questioned in a collateral attack when the decree or findings recite a service as in this ease until lack of jurisdiction is affirmatively shown from tbe records, which is not done in this case. (Yan Fleet on Collateral Attack, secs. 3, 3, 11, 17; Lyons v. Roach, 84 Cal. 37, 33 Pac. 1036; Newman’s Estate, 75 Cal. 313, 7-Am. St. Eep. 146, 16 Pae. 887, 889; Norton v. Atchison etc. Go., 97 Cal. 388, 33 Am. St. Rep. 198, 30 Pae. 585, 586, 33 Pae. 453; Sichler v. Look, 93 Cal. 600, 39 Pac. 330, 331.) It is the fact of service, not proof of it, that gives the court jurisdiction. (Newman’s Estate, 75 Cal. 313, 7 Am. St. Rep. 146, 16 Pac. 887, 889; Allison v. Thomas, 73 Cal. 563, 1 Am. St. Rep. 89, 14 Pae. 309; -Sichler v. Look, 93 Cal. 600, 39 Pac. 330-333.)