[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 423 This action is brought on the equity side of the court to compel the defendant to convey the title of certain premises to the plaintiff in pursuance of the terms of a written contract, or, if unable to convey a marketable title, that he be decreed to return a partial payment made by the plaintiff. The trial court held that the title was marketable and decreed specific performance. The Appellate Division reached a contrary conclusion and so reversed the judgment.
The defendant's title comes through a foreclosure of a mortgage while Mary J. Stockton was the owner of the fee, but in the summons and complaint, both of which were duly served upon her, she was called Emma J. Stockton. Later the attorney for the plaintiff, without notice to Mary J. Stockton, obtained an order amending the summons and complaint so as to correctly state her given name in pursuance of the *Page 425 authority conferred by section 723 of the Code of Civil Procedure, which provides that the court may, "before or after judgment, in furtherance of justice, * * * amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party."
The contention that the court had no power to amend the summons and complaint as provided by the order is founded upon the claim that the court had not acquired jurisdiction of defendant Stockton by the personal service of the summons and complaint upon her because of the error therein in respect to her given name. But we cannot concur with a view that insists upon it that any error appearing in a summons in the name of a defendant prevents the court from acquiring jurisdiction of such defendant, notwithstanding he was fully apprised, when service of the summons was made upon him, that he was the party intended to be named therein and affected thereby: a view directly antagonistic to both the letter and the spirit of sections 721 and 723 of the Code, the first of which declares that a judgment of a court of record shall not "be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings, or other proceedings:
"* * * 9. For a mistake in the name of a party or other person * * * where the correct name * * * has been once rightly stated, in any of the pleadings or other proceedings," while the latter section provides for correcting a mistake in the name of a party as it appears in the summons, which of course presupposes, in case of prior service, that jurisdiction has already been acquired. The object of the summons is to apprise the party defendant that the plaintiff therein seeks a judgment against him so that he may take such steps as may seem advisable to protect his interests, and in order to assure its coming to his attention the statute requires personal service of the summons to be made when it is possible to do so. It may happen, as in this case, that the defendant's name is not correctly stated in the summons, and in such case it is the duty of *Page 426 the court, when properly moved, to determine whether, notwithstanding the error, the defendant was fairly apprised whether he was the party the action was intended to affect, and if the answer of the court be in the affirmative, its determination must be that the court acquired jurisdiction. In our judgment the facts disclosed by this record permit only one answer to the question, Was Mary J. Stockton fairly apprised by the summons and complaint served upon her that the object of the action was to foreclose a mortgage upon the premises owned by her? viz., that she was. That being so, it follows that it was the duty of the court, when applied to, to hold that jurisdiction had been acquired and thereupon to grant such amendments in furtherance of justice as the statute authorized. That is precisely the course of procedure taken in the foreclosure action. After the summons had been personally served upon Mrs. Stockton more than twenty days the fact that there was an error in her given name, as it appeared in the summons, and of what that error consisted was brought to the attention of the court, which thereupon decided to amend the summons and complaint so that the defendant's name should correctly appear in every paper entitled in the action. The decision expressed necessarily involved a decision not expressed, but nevertheless made, that the court had acquired jurisdiction of the defendant in the action, and hence it follows that the court could and should have made the order amending the summons and complaint so as to state defendant's given name properly. The decision was correctly made, and it follows necessarily that the purchaser at the foreclosure sale acquired a marketable title.
We have not alluded to the decisions of the several Special and General Terms which the Appellate Division felt called upon to follow. Their foundations were laid long before sections 721 and 723 of the Code came into existence as marking features of a distinct legislative policy to stop the sacrifice of things of real substance upon the altar of mere technicality, and hence a discussion of them can serve no useful purpose. *Page 427
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs to the appellant in all courts.
GRAY, O'BRIEN, MARTIN, LANDON and CULLEN, JJ., concur; WERNER, J., not sitting.
Ordered accordingly.