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construed by this court, the appeal was not taken until the bond was filed and approved. Session Laws, 1885, p. 158; Hunt v. Arkel, 13 Colo. 543; Law v. Nelson, 14 Colo. 409; Straat v. Blanchard, 14 Colo. 445.

From the bill of exceptions it appears that after the ren dition of the judgment by the county court, but before the filing and approval of the appeal bond, the defendants served upon plaintiff written notice to the effect that they had ap pealed from the judgment rendered against them in the county court to the district court. This notice was not in accordance with the facts as the appeal had not then been taken; nor was it in compliance with section 4 of the act of 1885, supra. The statutory notice is required to be served after the appeal is taken, not before; it is a notice of an act performed, not of an act to be performed. In this case no notice was served after the appeal was taken; nor was there any waiver by Simmonds of his statutory right to have the appeal dismissed, as in the cases of Robertson v. O'Reilly, 14 Colo. 441, and Coby v. Halthusen, 16 Colo. 10. At the very first opportunity and without taking any other step in the premises, Simmonds appeared specially in the district court and moved for the dismissal of the appeal in accordance with the terms of the statute. The contention that he was estopped from asserting his statutory rights because of the mistake or failure of appellants in serving the notice is not tenable.

With much earnestness and ability counsel for plaintiff in error contend that as Simmonds had actual notice that the appeal was taken, the object of the statute was fully accomplished; and that as he suffered no injury by the premature service of the notice he should not now be heard to complain. Again, it is urged that the act should be considered as a part of our code of procedure, and that the same should be liberally construed as a remedial statute. Code, sec. 443.

Upon arguments like the foregoing we are asked to overrule the previous decisions of this court construing the act under consideration. "The judicial interpretation" of a VOL. XVII.-4

statute, says the supreme court of Louisiana, "becomes, as it were, a part of the statute, and should not be changed but for the most cogent reasons."

It is conceded that a remedial statute should be liberally construed whenever such construction will advance the remedy intended but not when it will defeat the object of the statute. Sedgwick on Statutes, 2d ed., pp. 198, 215, 308, et seq. In Callahan v. Jennings, 16 Colo., 471 the act under consideration was liberally construed and upheld by this court against an attack which threatened its existence.

Section 4 of the statute is an express burden upon the remedy by appeal, and we do not feel at liberty to depart from its plain language in order to relieve a party from noncompliance with its terms. Said section not only prescribes the kind of notice and the time within which it must be served, but it also gives to appellee the right to certain specific relief in case appellant fails to give the required notice, and entitles appellee to have such relief granted “at any time before such notice is actually served, and after the time when it should have been served." This language effectually disposes of the argument that appellee is not entitled to insist upon time of giving notice as an essential part of the statute. The section in effect confers a certain privilege or grants a certain right to appellee in case appellant does not comply with its terms. Hence, we feel constrained to hold, as we have in effect before held, that the statute is mandatory in that behalf. Bishop on Written Laws, secs. 254, 255.

We have several times indicated that the statutory provision under consideration was harsh, and that some legislative relief therefrom was desirable. But as such relief has not been granted, the present case must share the fate of its predecessors. The judgment of the district court is accordingly affirmed.



1. PERSONAL JUDGMENTS AGAINST NON-RESIDENTS.-In the absence of a voluntary appearance courts can obtain no jurisdiction to enter personal judgments for money against non-resident defendants having no property in the state.


2. ACTION TO RECOVER BALANCE AFTER Decree of FORECLOSURE.By statute, a separate action at law to recover the balance unpaid upon a mortgage debt after sale of the mortgaged property under a foreclosure decree cannot be maintained in the state of New York, without prior consent of the court of chancery in which the foreclosure takes place.

3. NEW YORK Rule not applICABLE IN COLORADO.-But prior permission of the New York court of chancery, where a foreclosure has taken place, is not a necessary condition precedent to the maintenance of an action in Colorado against a resident of this state for the unpaid balance of the mortgage debt.

Appeal from District Court of Arapahoe County.

Mr. J. H. REDDIN and Mr. GEORGE L. HODGES, for appellant.

Mr. A. B. SEAMAN, for appellee.

CHIEF JUSTICE HELM delivered the opinion of the court.

The transcript before us recites a number of transactions which we deem it unnecessary to detail. The following sufficiently presents the facts for the purposes of the present opinion.

In the year 1886, Milton F. Ufford, and Morell F. Ufford executed an instrument of writing acknowledging an indebtedness in the sum of $2,500, and binding themselves, their heirs, executors and administrators jointly and severally in the language usually employed in bonds, for the payment thereof on or before a certain date mentioned. This instrument, or bond as it is called, was prepared in New York where the original indebtedness accrued, and

was signed and acknowledged by Milton F. Ufford in "that state. Morell F. Ufford, however, had at the time become a resident of the state of Colorado, and he signed and acknowledged the instrument here. To secure payment of the same Ina F. Williams, a resident of New York though not a co-maker of the bond, executed a mortgage upon certain real property in that state.

The debt being unpaid, after maturity suit was brought by Follett the mortgagee, also the obligee in the bond, to foreclose the mortgage, Ina F. Williams and Milton F. Ufford being made parties. The suit resulted in a decree of foreclosure and order of sale, and also in a personal judgment against Milton F. Ufford for the surplus of the mortgage debt, if any, remaining unpaid after the sale.

The property was subject to large prior encumbrances and brought only a small proportion of the indebtedness. The money judgment in the decree against Milton F. Ufford after deducting the proceeds of the sale was for $2,979.92, considerable interest having accrued upon the original debt. Execution issued against Milton F. Ufford and was returned nulla bona.

In the meantime and prior to the commencement of the foreclosure suit in New York, Morell F. Ufford died in Colorado and his estate was in process of administration before the county court of Arapahoe county. A claim was filed by Follett in pursuance of the statute, against this estate for the unpaid balance of his indebtedness. Objection being interposed, the county court disallowed the same. Appeal was taken to the district court where upon retrial judgment was rendered in favor of Follett and against the estate of Morell F. Ufford for $3,130, being the unpaid balance of the original claim with interest. To review that judgment the present appeal was taken.

The assignment of error mainly relied on is that the district court was without jurisdiction to adjudicate the claim in question. This assignment is predicated upon the following New York statute: "Sec. 1628. While an action to

foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt without leave of the court in which the former action was brought." No permission was obtained from the New York court in which the foreclosure took place to present a claim or bring an action elsewhere for the unpaid balance of the mortgage debt. Counsel for appellant assert that without such prior permission the court below could take no jurisdiction over the matter. There is no doubt but that in a controversy before a New York court between residents of that state counsel's proposition would be correct. For the New York courts give the statute its plain and obvious effect. They hold that under the circumstances specified by section 1628 and associated provisions, permission of the court in which a foreclosure takes place is a condition precedent to the commencement of a separate action at law for the unpaid balance of a mortgage debt. Those courts also declare that the granting of such permission is not a matter of course; that the application must be upon cause shown and that its favorable consideration is to be determined according to principles of equity. Equitable Life Ins. Co. v. Stevens, 63 N. Y. Ct. of App. 341; Scofield v. Doscher, 72 N. Y. Ct. of App. 491.

For reasons, however, which we shall proceed to state, the statute and decisions in question are not applicable to the present case. The New York act, of which said section 1628 is a part, contains several other provisions that are in pari materia and must be construed therewith. The preceding section provides that any person who is liable to plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the foreclosure suit. It then declares that if such person has appeared or has been regularly served with process a personal judgment may be awarded against him in the foreclosure decree for the payment of the residue of the mortgage debt remaining unsatisfied after the sale of the property and application of proceeds. The provision

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