p. 94Hannah A. Durham, Respondent, v. Richard A. Chapin, Individually and as Administrator, etc., of Charles Chapin, Deceased, and Others, Defendants; Lovisa H. Chapin, Appellant.Headnote
Amended, complaint — it cannot he served on a party who has not appeared -— it need not he returned."Where a defendant served with a summons and complaint in foreclosure does not appear in the action, an amended complaint cannot be served upon him" except by an order of the court under section 727 of the Code of Civil Procedure — certainly after the expiration of twenty days.
A defendant, upon whom an amended complaint is served without authority, does not waive the irregularity of service hy failing to return it.
Appeal hy the defendant, Lovisa H. Chapin, from an order of the Supreme Court, made at the Montgomery Special Term .and entered in the office of the clerk of the county of. Washington on the 26th day of October, 1896, denying her motion to set aside the service of an amended complaint and to vacate the deficiency judgment -entered in the action, and to set aside the foreclosure sale had therein. •
The summons, with the complaint in foreclosure, was served upon-the appellant February 28,1896. The complaint made no personal claim against the appellant. She consulted counsel,. and acting upon his advice, did not appear or defend, but made default.. The amended complaint was served upon her April 18, 1896. This contained a personal claim and demanded judgment for deficiency. Hot understanding that the amended complaint changed the situation, the appellant paid no attention to it. She had no actual notice of the provision in the judgment for the deficiency till the day of sale. The sale resulted in a deficiency. The appellant makes an -affidavit of merits.
F. B. Gill, for the appellant.
H. D. W. C. Hill, for the respondent.
The Code of Civil Procedure (§ 543) provides that a pleading, amended as permitted, in section 542, which is the only section permitting an amendment as of course, must be served upon the attor
p. 95nev of the opposite party. The appellant had no attorney. The amended complaint was not served until about six weeks after the service of the original complaint, and, therefore, was not within the time permitted by section 543. Where the defendant has no attorney, there is no authority for serving an amended pleading upon him, except by order of the court, under section 727. The appellant, under the circumstances, did not waive the irregularity of service by failing to return the amended complaint. As the service upon her was not authorized, she should not be prejudiced by it, in the absence of facts in the nature of an estoppel.
We see no occasion to set aside the sale.
So much of the order as denies the motion to set aside the service of the amended complaint, and to strike out the judgment for deficiency, is reversed, with ten dollars costs and disbursements, and the motion in these' respects is granted. The order is affirmed, in other respects.
All concurred.
So much of the order as denies the motion to set aside the service of the amended complaint, and that refused to vacate the judgment for deficiency, reversed, with ten dollars costs and disbursements, and the motion in those respects granted ; in other respects the order appealed from affirmed.