Sonnemann

"This action was brought to foreclose a mortgage given by the defendants Sonnemann and Brackett to secure their promissory note for $10,000 made on the 7th day *Page 195 of December, 1896, and payable to plaintiff, a Massachusetts corporation, one year after date. Both note and mortgage were executed in Massachusetts. The action was commenced on November 23, 1906. On the same day the court made an order providing for the service of summons on the defendant Sonnemann by publication. Pursuant to this order, which was based upon a sufficient affidavit, the summons was duly published, and a copy thereof, together with a copy of the complaint, were, on November 23, 1906, mailed by plaintiff to Sonnemann at his residence in the state of Washington. Sonnemann did not appear within the time allowed by law, and his default was duly entered, as was that of Brackett, on February 27, 1907, and a decree of foreclosure was made and entered against said defendants. Shortly thereafter Sonnemann appeared and moved the court to set aside the decree and open the default, and this motion was granted by an order reading: `It is ordered that the decree be set aside and the default opened, and that the…

After this case had been heard and decided in Department One, a rehearing was granted in order that we might further examine the authorities touching upon the defense *Page 194 of the statute of limitations, and particularly that we might consider whether or not at the time of the adoption of section 473 of the Code of Civil Procedure the rule was that given in the decision by the Department. A further consideration of this subject has convinced us that the weight of recent authority is overwhelmingly in favor of the rule announced in the decision rendered in Department, and that even at the time of the adoption of section 473 the modern doctrine had been adopted in many jurisdictions. That part of section 473 of the Code of Civil Procedure which has reference to the reopening of judgments in cases in which personal service has not been obtained was adopted in 1872, and was based upon section 68 of the Practice Act as amended (Stats. 1865-6, c. 619, sec. 1). The case of Ekel v. Snevily, 3 Watts S. (Pa.) 273, [ 38 Am. Dec. 758 ], cited in the Department opinion, was decided in 1842, and was the first Pennsylvania case announcing the rule quoted by Mr. Justice Sloss. The earlier…