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§ 1374. A complaint must be made and verified, as in an action, showing that the case is one of those mentioned in section 1372. The original instrument, or a copy of the record, if the proceeding be upon a judgment, must be annexed to the complaint, or if already filed in a court of this state, a copy thereof may be annexed, instead of the original.

§ 1375. If the complaint be against the endorser of a promissory note, or the drawer or endorser of a draft or bill of exchange, there must also be annexed to the complaint an original notarial certificate, showing the due presentment of the note, draft, or bill of exchange to the maker or acceptor thereof, and due notice of nonpayment to the defendant, or a written waiver by the defendant of the presentment and notice.

§ 1376. A copy of the complaint and annexed papers must be served by the sheriff, on the defendant, or on any of several defendants jointly indebted, by delivering as in the service of a summons in a civil action, with a notice in writing from the plaintiff or his attorney, that the complaint will be presented, for judgment thereon, to a judge of the court, or, if the complaint be entitled in the supreme court, to a county judge, at a specified time and place; the time to be not less than forty-eight hours after the service, and the place to be within the county, where the service is made, and where the defendant has his place of residence or business.

§ 1377. At the place and time specified, on presenting to the judge the complaint and notice, with a certificate of the service thereof, mentioning the time and place of the service, the judge must endorse on the complaint, an order that judgment be entered for the amount appearing to be due, specifying it; unless the defendant then present a sufficient answer to the complaint, made as in an ordinary action, and verified by himself.

§ 1378. At any time within three days after the making of such order, the complaint and annexed papers may be filed with the clerk, who must endorse upon it and enter in the judgment book a judgment of the court, for the amount ordered, with five dollars costs. The complaint, affidavit, and papers annexed with the judgment endorsed upon the complaint, thereupon become the judgment roll.

§ 1379. If a sufficient answer be presented, the judge must endorse on the complaint an order that, within five days, the same be filed with the answer, and any reply that the plaintiff may desire to make to any counter-claim in the answer, and that the issue thus joined be forthwith placed upon the calendar for trial, if a circuit or term of the court be then in session, or if not, then at the next session thereof. Upon the filing of the pleadings, the proceeding becomes an action pending in the court, to be tried, without further no

tice, and all subsequent proceedings therein must be the same as in other actions.

§ 1380. If a part only of the claim be denied by the answer, the judge may make an order that the reridue be forthwith paid; and that the issue as to the residue be tried, as prescribed in the last section.

§ 1381. Notwithstanding such answer, the plaintiff may have an attachment against the property of the defendant, to be granted by the judge, upon an undertaking executed on the part of the plaintiff, by at least two sufficient sureties, who must justify as bail are required to justify, and be approved by the judge, to the effect, that the plaintiff will pay to the defendant such damages as he may sustain by reason of the attachment, if it finally appear upon a defence by the defendant, that he was not liable to the plaintiff, in any amount, or if it appear that he was not liable to the amount of the attachment, then such damages as he may sustain by reason of the excess of the judgment.

§ 1382. The defendant, however, may prevent the issuing of such attachment, by delivering to the plaintiff or to the judge, an undertaking, executed and approved as provided in the last section, to the effect, that the sureties will pay to the plaintiff the amount of any judgment, that may be rendered in the action, upon the cause of action mentioned in the complaint.

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§ 1383. Such attachment must be issued and executed in the same manner as attachments issued pursu ant to the chapter on attachment, and all the provisions of that chapter, apply to the attachment issued, under section 1381.

CHAPTER II.

SUMMARY PROCEEDINGS FOR

FORECLOSING

PROPERTY.

MORTGAGES OF REAL

SECTION 1384. Mortgage to secure payment of money only, may be foreclosed un

1385.

1386.

der this chapter.

Notice of foreclosure and sale, its contents.

Publication and service of the notice.

1387. Postponement of sale, how made and published.
1388. The sheriff to attend sale on request.

1389. Manner of sale, time and place.

1390. Notice to be given of application, to confirm sale.

1391. Terms of sale, and manner of payment.

1392. Proof requisite on the application to confirm.

1393. Proofs of publication, serving and posting.

1394. Judge to correct amount, and determine regularity.

1395. Order of confirmation, its contents.

1396. Power to amend or vacate. Effect of omission to serve notice, and of vacating sale.

1397. When persons cannot be found, the publication and posting good service.

1398. Order of confirmation with evidence, to be recorded.

1399. Action may be brought contesting the right or amount claimed,

and injunction allowed.

1400. Junior incumbrancers may pay the mortgage, and require as

signment.

1401. Judge to direct disposition of proceeds.

1402. Judge's order subject to appeal.

1403. When part only is due, and part sold, another sale may afterwards

be had.

1404. When part only is due, and there is a surplus.

1405. Mortgages to the state included.

1406. Costs on summary foreclosure.

§ 1384. A mortgage of real property, to secure the payment of money only, and duly recorded in the county where the property is situated, may, at any time after default in the payment of principal or interest, be en

forced by foreclosure and sale, as provided in this chapter. In all other cases the foreclosure of mortgages of real property, must be by action; and nothing in this section takes away the right of a party to foreclose by action in every case, at his option.

The summary foreclosure, by the revised statutes, may be had, whatever be the condition of the mortgage, and applies equally to a mortgage for the performance of covenants, or to indemnify for unliquidated damages, as for the payment of money only. We regard the latter class of cases only as the proper subjects of a foreclosure without action. This section, however, goes beyond the revised statutes by including a mortgage for the payment of money, whether it contain a power of sale or not. The pledge of specific property, for the payment of a sum of money, necessarily implies a right to sell in case of default.

We have aimed in this chapter, to unite the simplicity and cheapness of the summary foreclosure by advertisement, with the security of right to the debtor, and the safety of title to the purchaser under the old procedure. The execution and acknowledgment before a public officer, and delivery of a mortgage upon specific real property to secure the payment of a sum of money, and its formal entry upon the public records, constitute a case where the law's delays ought not unneccessarily, to extend the time limited by the parties themselves, for the performance. There appears to be no good reason why the holder of a specific lien by mortgage, should not be entitled to a remedy as summary as if he were a judgment creditor. It is therefore provided in this chapter, that the holder of a mortgage may, upon default in payment, proceed at once to advertise the property for sale, by a notice to be published the same length of time as required for a sale on execution. The provisions to guard the rights of the debtor, and the security of the purchaser, are believed to be ample, and are so arranged as not necessarily to delay the sale.

The provisions of the revised statutes for foreclosure by ad

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