111 Ind. 408 | Ind. | 1887
The facts involved are stated in Sterne v. Vert, 108 Ind. 232. The appellant having obtained a decree’ foreclosing a mortgage upon two of three separate parcels of land, it was there held that, having sold the tracts upon which she had obtained the decree, she was thereby estopped from prosecuting an appeal to this court to secure a reversal of the-judgment as to the third tract, in respect to which the decree-was adverse to her.
After the appeal was dismissed, the appellant, having filed the proper undertaking for costs within a year from the rendition of the original judgment, moved the court for a new trial as a matter of right, in respect to the judgment quieting-the appellees’ title as against the mortgage on the forty-acre-tract.
The defendants appeared in the court below by their guardian ad litem, and were permitted to show, in opposition to-the motion and application for a new trial as a matter of' right, that since the rendition of the original judgment and. decree, the plaintiff, by virtue of the decree in her favor, had! sold two of the tracts of land involved in the litigation, and that she had realized from such sale ten hundred and fifty dollars, which had been credited upon the decree. The court, thereupon overruled the motion for a new trial. From this ruling the appeal now before us is prosecuted.
The appellees have appeared in this court, and by an answer bring upon the record substantially the facts exhibited to the-court below, which are, in substance, the same as those upon which the former appeal was dismissed. Upon the facts so brought forward, they again move to dismiss the appeal.
The record before us shows the facts, and the same reasons which induced the former dismissal are operative to produce a like result upon the motion now made.
It may be well to remark, the suit having been brought for the foreclosure of a mortgage, and the cross complaint having asked nothing more in effect than the cancellation of the mortgage in suit, and that the cross complainant’s title
The appeal is dismissed, at the appellant’s costs.