Waller

F. F. Weston was defendant in an action to foreclose a mortgage. Summons was issued, and a return made by the sheriff showing personal service upon him. Upon his failure to answer, judgment was taken against him and a decree of foreclosure entered. A sale was had and a deficiency judgment docketed. The judgment was entered on the sixteenth day of October, 1897, and on the fifteenth day of February, 1898, Weston gave notice of his motion, supported by affidavits, to set aside the default and judgment and quash the service of summons, upon the ground that service of summons had never been made upon him, and that the court had never obtained jurisdiction over him. Upon the hearing, it seems to have been satisfactorily established that the defendant had never been served in the action, but that the sheriff by mistake had served his brother in his stead. After hearing, the court made a conditional order vacating the judgment and quashing service of the summons, provided that defendant pay to plaintiff within ten days the sum of one hundred and nine dollars. The defendant refused to comply with the terms of the order imposing costs as a condition to the vacation of the judgment.

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