Herman

This action was brought to foreclose a mortgage given to secure payment of a promissory note made by the appellant, Milton Santee. On September 8, 1892, a decree of foreclosure was entered as prayed for, reciting that the “ defendants have been duly and regularly summoned to answer unto the plaintiff’s complaint herein, and made default in that behalf, and that the default of each. defendant for not appearing and answering unto plaintiff’s complaint has been duly and regularly entered herein.” Subsequently, appellant gave notice of a motion to vacate and set aside the decree, so far as it provided for a deficiency judgment against him, upon the ground that previous to the institution of the action he had been discharged from the indebtedness sought to be enforced by a discharge in insolvency. The motion came on to be heard on September 1, 1893, both parties being present in court by their attorneys. Before the hearing commenced the respondent, without any previous notice, presented to the court an amended affidavit of service of the summons and complaint in the case, and asked for an order that the same be filed nunc pro tunc as of September 8, 1892, and made a part of the…