Wikle v. Jones ( 1908 )

Holden, J.

The executor of an estate in his individual capacity executed to- himself as such executor a mortgage reciting that it was given to secure his indebtedness to the estate, and afterwards entered on the mortgage a cancellation, which was entered on the records; subsequently to which he-was adjudged a bankrupt. In a proceeding brought by the legatees under the will, a decree was rendered wherein such cancellation was declared void and the mortgage ordered foreclosed for the amount due thereon, to be determined by a jury. Thereafter the trustee in bankruptcy filed an intervention, asking to be made a party and attacking the validity of said mortgage and decree, neither admitting nor denying, for the want of sufficient information, the allegations in the plaintiffs’ petition of such indebtedness, and making other contentions, which intervention was sanctioned and ordered filed. The court passed an order adjudging that the demurrer to the intervention be sustained “and the intervention . . is dismissed, and the restraining orders granted therein are dissolved; except it is further ordered that said trustee be allowed to defend as to the amount still due under said mortgage” under the decree. Held:

Submitted January 14, Decided July 15, 1908.

Practice. Motion to dismiss the writ of error.

John W. & Paul F. Akin and John T. Norris, for plaintiff in error. Seaborn & Barry Wright, contra.

(а) The case is still pending in the court below, with the amount due on the alleged debt to be determined, and the case was prematurely brought to this court.

(б) Leave is granted to the plaintiff in error to file as exceptions pendente lite the official copy of the bill of exceptions retained in the office of the clerk of the trial court, as no special hardship will be imposed on the defendants in error by allowing this to be done, and the language of the order is such as to make difficult of determination the question as to whether or not the case could be brought directly here by exceptions thereto.

Writ of error dismissed, with directions.

All the Justices concur.