Burlington Railway Company v. Simmons

This is a motion to dismiss an appeal because the decree appealed from is not final, but interlocutory only The case is in substance this: A bill was filed by a junior mortgagee against the mortgagor and a prior mortgagee, to foreclose his mortgage, and to establish his right to redeem from the prior mortgage. The defense was that, under certain proceedings had for the foreclosure of the prior mortgage, his right to redeem had been cut off, and the mortgaged property sold free of his lien. The decree appealed from finds: (1) That the junior mortgage is still a valid and subsisting lien, and that the right of its trustee and beneficiaries to redeem had not been cut off by the proceedings for the foreclosure of the earlier mortgage. (2) That those claiming title under the sale upon the foreclosure of that mortgage, and certain other parties, are entitled to redeem the junior mortgage, 'by paying off the amount due' thereon, 'at such time as shall hereafter be fixed and determined by a further order or decree to be entered in this cause.' (3) In case none of the parties claiming under the prior mortgage redeem the junior mortgage, and the junior mortgagee redeems the prior one, then that the junior mortgage shall be foreclosed, and a sale of the property 'shall be had, under a decree to be entered by this court,' and the proceeds shall be applied-First, 'to paying off the amount paid to redeem from the first' mortgage; second, the amount found due on the second mortgage; and the balance, if any, paid to the mortgagor. (4) 'In the event that none of these parties shall redeem from the others, * * * then a sale' of the mortgaged property 'shall be had, pursuant to such decree as may hereafter be entered herein, and from the proceeds shall be paid off-First, the amount which it may be hereafter determined is due on the first' mortgage; 'second, * * * the amount which it may hereafter be determined is due on the second' mortgage; and, third, the balance, if any, to the mortgagor. It was then ordered that, 'for the purpose of determining the amount necessary to be paid by any of the parties in making redemption, as herein provided,' the cause be referred to a master, 'to find and report' the amount due on both the first and the second mortgages, in accordance with certain principles of accounting, which were specifically stated. The whole then concludes as follows: 'This decree being interlocutory, it is ordered that said cause stand continued for further order and decree.' From this decree the appeal was taken. The case is reported as Simmons v. Taylor, 23 Fed. Rep. 849.

H. B. Turner and B. F. Lee, for the motion T. F. Withrow, in opposition.

WAITE, C. J.