Where a state court holds that a federal question is made before it, according to its practice, and proceeds to determine it, the Supreme Court will regard the question as duly made.
A mortgagee filed a lawsuit against her mortgagor to vacate a judgment of foreclosure and to permit her to redeem the property. The mortgagee alleged that the foreclosure proceedings should have been vacated because she was a minor at the time, she was not a resident where the action was brought, she was not summoned in such action, she had no knowledge of its pendency, did not waive service or enter an appearance therein, and that the sheriff made a false return of a pretended summons. The trial court in the foreclosure action relied on the allegedly false service and appointed a guardian ad litem for the mortgagee. The Supreme Court of Indiana affirmed judgment in favor of the mortgagor.
Was the return procured by fraud or collusion?
The court affirmed the judgment of the lower court for the mortgagor in the mortgagee's lawsuit to vacate a judgment of foreclosure. The court held that the false return was not procured by fraud or collusion, and the trial court was entitled to rely upon its facial validity. Therefore, the mortgagee's permitted recovery was against the sheriff upon his bond, regardless of whether such recovery would be adequate.