JULY TERM, 1856. CLARK V. CARNALL. No appeal will lie from a decree pro eonfesso on default of answering, until it has been made final by the operation of the statute, or the act of the court. On a bill to foreclose a mortgage, to which junior incumbrancers were made parties, the court should decree that the balance of the money arising from the sale after paying the mortgage debt, be brought Iwo court t. s be paid over to the parties according to their respective equities. But quere : Would a decree imperfect in this resist:et be reversible on appeal. Appeal from the Circuit Court of Sebas-tian County, in Chancery. B EFORE the Hon. J. J. Clendenin, on interchange of circuits. Jordan, for the appellants. Hempstead, for the appellee. HANLy, J. On the 5th July, 1855, the appellee, Carnall, filed his bill in the circuit court of Sebastian county in chancery, to foreclose a mortgage, charged to have been made by one Norton to one Fleming on sundry lots situate in the city of Fort Smith, to secure the payment of four notes for 8250 each, bearing date, the date of such mortgage, and payable one, two, three and four years from the 2d September, 1852. The bill charges that before the payment of either, or auy of said notes, they were regularly and duly assigned and delivered to the complainant therein, and that at the time they were so set over, the mortgage 'was also assigned to him. [a210 Itis further charged in the bill that subsequently to the execution of such-mortgage, and its formal registration in the county of Sebastian, some five other mortgages were made by the de-2091 *CLARK ET AL. fendant Norton on the same property, and that within the same .time, some V. sixteen or seventeen judgments were CARNALL. recorded in the Sebastian circuit court It is irregular to set a chancery cause for hearlug, against the same defendant, Norton, and absolutely hearing i t, at tht-_, appearance term, and that such judgments operated as against a party answering, without Ws affirmative consent. But if the defendant. so liens on the same property. The subse-an swering do not complain, his co-defendants, against whoin no re-quent mortgagees and judgment lief is prayed or taken, and who are not affected by creditors are made defendants to the the decree, have nu r■ght to appeal. bill. The bill also makes the assignor
CLARK V. CARNALL. VOL. 18 of the complainant party defendant two sums due with interest, within 60 thereto. days, and in default thereof that the At the return term of the subpcenas, commissioner appointed therein should all the parties to the bill were brought sell all or so much of the mortgaged in, either by personal service, or by premises aS should be sufficient to pay publication proved. There was uo sub- the several debts so ascertained by the stantive appearance except for the de- decree, at a time and place appointed fendant Fleming, who admitted in his therein, with the usual directions in answer all the main facts charged in regard to the notice of sale, etc. It the bill ; but averred that, at the time was further authorized by the decree he made the assignment ot the notes that, as to the notes not due, the com-and mortgage to the complainant, plainant should have leave by subse-there was an agreement in writing en- quent decree or order, to make said de-tered into between them, to the e&ct cree apply to them as they should fall that he was only to be responsible to due by their terms and tenor. the complainant for the amount of his The bill, in this case, prayed process notes in the event that He should be of subpcena against all the defendants: unable to make the same out of the de- that they be required to answer the fendant Norton, or the mortgaged bill, that an account be taken, under premises, and asking that such might the direction of the court, of what is be the decree of the court. A default due upon the mortgages and judg-was noted as to all the defendants at ments set out and stated in the bill; that term except as to Fleming. As to that the defendant Norton be decreed him, the transcript shows there was an to pay what shotfld appear to be due, order entered, at the same term, that with costs, and in default thereof, that the cause should be set down for hear- the mortgaged premises be sold, and ing on bill, answer, and exhibits, which the proceeds applied according to the was accordingly done, and the cause rights of the respective parties; and for at that term heard by the court, with- general relief. out any affirmative consent, or further The appeal in this cause was prayed step taken by him after the coming in for and taken by only three defend-of his answer. No replication seems ants, Clark, Spring and Wheeler, who to have heen filed to Fleming's an- appear from the bill to have no in-swer. On bearing the cause as to terest in the case made out, except as Fleming, the chancellor seems to have subsequent mortgagees or judgment rendered a decree, pro confesso, agait;st creditors. The mortgagor, Norton, and the defendants not appearing, as well the defendant, Fleming, seem to have as on the hearing against Fleming, acquiesced in the decree of the court which, in substance, is that the defend- below. The cause is only before this ant, Norton, the mortgagor, was found court on the appeal of Clark, Spring to he indebted to the complainant and Wheeler. in the sum of $250, due 21 Septem- It does not appear from, the tran-ber, 1853, and the like sum due script that any evidence was offered at 2d September, 1854, with interest on the hearit.g of the cause as to Fleming. those sums up to the date of the It is supposed, therefore, that the hear-211*] *decree; and further that he was ing as to him was on the bill, his an-also indebted to complainant in two like swer, and the exhibits (the mortgage sums, the one due 2d Sept.,1855, and the and notes recited in the bill), without other on the same day in 1856. That further proof. the defendant Norton should pay the The appellants have assigned seven
JULY TERM, 1856. CLARK V. CARNALL. errors and insist that the cause must court below was premature in setting be reversed on their account. In the his cause for hearing, and absolutely view that we shall take of this case, hearing it at the same term at which we do not deem it necessary to notice his answer was filed, and that, too, the assignment, except in a general without his affirmative consent. BM way. this, as we have before intimated, is a 212*] *We are unable to perceive Matter which affects only Fleming un-the principle upon Which the appel- der the peculiar state of this case, and lants can hope to reverse this cause. of which the appellants have no right It is manifest they are not directly af- to complain either in this court or any fected by the decree pronounced other forum. If Fleming had appealed, against Norton, the mortgagor. It was or complained of this irregularity, we wholly unnecessary that the complain- might have been called upon, on that ant, Carnal], should have made them account, to have pronounced a reversal parties to this bill, and having done of the decree as to him. so, and no relief prayed for, or taken It is, moreover, insisted for the against them, we are forced to intend appellants, that the decree 'ren- [*213 they were made by the complainant dered in the cause before us is not and considered by the court below, commensurate with the prayer of merely as formal parties. If the de- the bill, and is therefore imper-cree that was taken, which the appel- fect and reversible. We adtnit, lants appear to conceive or term a pro one respect, the decree is imperfect, confesso decree against them, affected for the reason that the court below their interests in any way, they had a might have proceeded to decree the day in court, after it was rendered, to money arising from the sale of the have had their complaints respecting mortgaged premises to be brought into it heard and remedied by the court. court, and there have determined But it seems their mouths were closed the rights of the parties in interest to as to this. No application was made the fund, in accordance with their re-for this purpose. No effort was made spective equities, and think this would to set aside the supposed decree against have been the proper and appropriate them, and allow them to file their an- course. But for this alone, we do not swers to the original bill, and cross bill feel that we should be warranted in re-against the coin pldinants and their co- versing the decree, even if we supposed defendants, to have their rights pro- we had full cognizance of the c q use as tected in respect to the mortgaged to the appellants, which we will here-premised, or the securities therein mar- after determine. The rights of all the shaled, and the rights of those in in- defendants to the excess of money aris7 terest defined and settled by the court. ing from the sale of the mortgaged Without asking to have the decree set premises, may yet be protected and de-aside, they are shown, by the tran- termined before this cause is fully dis-script, to have applied for and taken an posed of in the court below, after the appeal to this court, and here their chief commissioner, who has been appointed complaint is, that injustice has been to make the sale under the decree al-done and errors committed against one ready rendered, makes report of his of their co-defendants, Fleming, who proceedings to the court and shows a has not complained, but seems to have balance of cash in his hands. It is pre-acquiesced in the disposition of the sumed it would be competent for the cause as respects himself. As to Flem- court, on petition or other appropriate ing, we have no doubt but that the showing on the part of the defendants,
Vox,. 18 to determine the rights of those parties to that fund, with the view (hat their liens be enforced in their respective order of priority. See Tyson V. Har-rington, 6 Ired. Eq. Rep. 331. Independent of the foregoing views, we think there can be uo doubt but that the appellants were not entitled to the appeal granted them by the court below, under the circumstances already shown; for the reason, that if there was really any decree rendered against or affecting them, it was only interlocutory, and would not, under the statute, ripen and mature until a final and complete decree, from which an appeal would lie, until after it was made final by operation of law or the act of the court. It must be borne in mind, the decree in question, as to the appellants, was a decree nisi, on the bill having been taken for confessed in consequence of their default to answer or plead to the bill. We hold that an appeal will not lie from such a decree until after it has been made final by 2149 the operation of the *statute or the act of the court. We esteem it during the time in a chrysalis state, and consequently imperfect. It does not appear by the record before us that there was any error in the decree nisi, of which the appellants could legitimately complain; but as they probably might have appeared at the subsequent term of the Sebastian circuit court, before the deeree nisi had become final, and shown their interest, they should be permitted to appear at the next term aud file their answers within the first four days thereof if they should desire and ask so to do. But as the decree appealed from is interlocutory and not final, as before held, an appeal will not lie; from it to this court. The cause is therefore dismissed. Absent, Hon. C. C. Scott. Oired:—Terry v. Rosell, 32-495; Jones v. Ark. Mech. & C, Co., 38-28, which see.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.