Boyer v. Pacific Mutual Life Insurance

McLAUGHLIN, J.

This is an action in ejectment. Judgment having passed for defendants, the plaintiff appealed

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from the judgment, and in his hill of exceptions specifies that the evidence is insufficient to sustain the findings of the court relating to the title and right of possession to the land in dispute. The facts essential to a decision are as follows:—

On September 19, 1890, one H. J. Pouts owned the land in controversy, and on said day executed and delivered to the defendant insurance company his note for three thousand dollars, secured by a mortgage upon said land. The title of Pouts passed by mesne conveyances to one Hellwegan, subject to the mortgage, and plaintiff claims title under a deed from Hellwegan dated June 30, 1900.

On July 13, 1894, an action to foreclose said mortgage was commenced, Hellwegan and his wife being made parties defendant. Summons was returned October 24, 1894, the return showing personal service on all the defendants except Hellwegan. On the same day an affidavit for publication of summons was filed, and the order for publication issued. Every step in the service of summons by publication is admitted to be correct, except that it is claimed that such order for publication is void, because the affidavit is insufficient.

There is a sharp conflict in the briefs as to the admission of said affidavit and order in evidence upon the trial of the case. Appellant claims that they were, and respondent that they were not, admitted.

During the trial of the case at bar counsel for defendants offered in evidence the

judgment-roll

in the foreclosure suit, and in making such offer enumerated a number of papers, among them the

affidavit and order for publication.

No objection was made, and the court then said: “Very well, received in evidence, and considered as read and marked

—that is the judgment-roll in the case of Pacific Mutual Life Insurance Company

v.

Pouts.”