Russell v. Brown

Citations

• 41 Ill. 183

Syllabus

<p>1. Writ op error—effect of delay in prosecuting, not amounting to a lar. Where the wife of a mortgagor, who had joined in the mortgage and was a party to a judgment of foreclosure thereof, after her husband's death, aud after a lapse of more than twenty years from the time of rendering the judgment, sues out a writ of error to reverse such judgment, the property in th; mean time having frequently changed hands and risen in value, the case will not receive any indulgence at the hands of the court, beyond what is required by the strict rules of law.</p> <p>2. Service op process. It is sufficient service of a scire facias to foreclose a mortgage, whei;e the defendants, husband and wife, indorse upon it their written acknowledgment of service of the writ, and pray the court to enter their appearance accordingly.</p> <p>3. Same—proof thereof. And the recital in the judgment that it appeared to the court that the defendants had been duly served with process, is satisfactory proof that the defendants did make the indorsement.</p> <p>4. Foreclosure ly scire facias—in what cases allowable. A mortgage which is given to secure the payment of money, may be foreclosed by scire facias, although the mortgagor was primarily liable for only a part of the debt thus secured, as to the residue his liability being merely secondary, and could only accrue in the event of nonpayment by other parties and notice.</p> <p>5. Assessment of damages ly the clerk—when allowable. In a proceeding by scire facias to foreclose a mortgage given to secure the payment of certain bills of exchange of which the mortgagor was indorser, as well as a promissory note of which he was the maker, it is proper, as the damages rest in computation, for the court to direct the clerk to compute them. The court would instruct the clerk at what rate to compute them, both as to the interest and the legal damages for protest.</p> <p>6. Judgment on foreclosure ly scire facias against husband and wife —■ its form,. The j