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Sayers v. Lichtman

Decided: August 1, 1936.

ALFRED L. SAYERS, PLAINTIFF,
v.
HARRY LICHTMAN AND JULIAN GAZDZINSKI, DEFENDANTS



On petition to open judgment and rule to show cause.

For the petitioner, Joseph Beck Tyler.

For the respondent, Louis B. LeDuc.

Before Justices Trenchard, Heher and Perskie.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. The pertinent facts are these: On March 10th, 1927, Harry Lichtman and Julian Gazdzinski (the latter hereinafter called the petitioner) executed and delivered their bond and mortgage on real property to the respondent Alfred L. Sayers. Subsequently the mortgagors conveyed the

property covered by the mortgage to others. On June 10th, 1932, the respondent filed his bill in chancery to foreclose the mortgage, without making Gazdzinski a party, and on June 11th, 1932, respondent filed his lis pendens. On June 14th, 1932, chapter 231, laws of 1932 (page 509), was enacted and took effect immediately. On October 18th, 1932, respondent having secured a final decree in his foreclosure suit, sold the mortgaged property with a resulting deficiency, and filed notice of his intention to enter judgment for that deficiency in this court; and on October 22d, 1932, judgment for the deficiency was duly entered.

The petitioner's application is to open the judgment on the ground that he was not made a party to the original foreclosure suit.

In view of the factual situation we must examine the act of 1932 which amended section 2 of the Mortgage act of 1880. Pamph. L., p. 255. Later amendments are not here pertinent. The act of 1932 reads:

"2. In all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the said mortgage, and if at the sale of the mortgaged premises under said foreclosure proceedings the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale of said mortgaged premises, and judgment shall be rendered and execution issue only for the balance of debt and costs of suit; provided, however, that no action shall be instituted against any party answerable on the bond unless such party is joined in the proceedings to foreclose the said mortgage.

"This act shall take effect immediately. Approved June 14th, 1932."

We are not here concerned with what the legislature might have done, ...


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