Binde v. Binde ( 1940 )

PER CURIAM.

Respondents have filed a petition for rehearing, wherein attention is called to the accounting had between the parties at the trial. As a result of this accounting the trial court offset .the amount due under the mortgage to the extent of $16.98, as disclosed in its conclusion of law No. 5. We are of the opinion that under the record this offset should be allowed.

Respondents further point out that appellant has been in possession of the land since the entry of the judgment on the 29th of March, 1939, and that a further accounting is necessary. We are inclined to agree.

The case is remanded to the trial court, with directions to proceed with the accounting for the period following the entry of its judgment in 1939; after such accounting, the trial court should determine the amount due defendant and by order provide that such amount with interest be paid within thirty days after the entry of the order. If the payment is made as ordered, the trial court is directed to enter its final judgment setting the foreclosure proceedings aside. If the payment is not made within the thirty-day period, the judgment should in all things confirm the foreclosure proceedings as had.

Our former opinion is modified as herein disclosed, and the petition for a rehearing is denied.