Foote v. Lathrop
New York Supreme Court
APPEAL from an order made at a special term denying a motion to set aside the judgment in this case, as to the defendant Elizabeth S. Lathrop, on the ground that she was not served with any process in the action, and that she did not appear therein. The petitioner, Mrs. Lathrop, was married to Solon II.
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APPEAL from an order made at a special term denying a motion to set aside the judgment in this case, as to the defendant Elizabeth S. Lathrop, on the ground that she was not served with any process in the action, and that she did not appear therein. The petitioner, Mrs. Lathrop, was married to Solon II. Lathrop in July, 1847. In July, 1854, the petitioner and her husband executed a mortgage upon lands belonging to her husband, situate in Buffalo, to Thomas M. Foote as executor, &e. Default in payment was made, and- this action was instituted, April 14,1857, to foreclose the mortgage. The…
1Opinion of the Court
By the Court, Marvin, J.
The only interest which the petitioner had in the land mortgaged by her husband was an inchoate right of dower. She joined in the mortgage. Her husband is now dead, and she seeks to avoid the judgment on the ground that she was not served with process in the action to foreclose the mortgage, and that she did not authorize an appearance in the action. If the judgment, as to her, is void, the motion must be granted.
*185[Erie General Term, February 8, 1869.
In Ferguson v. Smith, (2 John. Ch. 139,) Chancellor Kent said: “ The general rule is that the service of a subpoena…
2Cases cited2 opinions
- Leavitt v. CrugerNew York Court of Chancery · 1829
- Eckerson v. VollmerNew York Supreme Court · 1855
3Cited by6 opinions
- Feitner v. . LewisNew York Court of Appeals · 1890
- Janinski v. HeidelbergNew York Supreme Court · 1880
- Northrup v. WheelerNew York Supreme Court · 1872
- Toole v. TooleNew York Court of Appeals · 1889
- Watson v. ChurchNew York Supreme Court · 1875
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