Schluderberg v. Robertson

Alvey, C. J., delivered the opinion of the Court. The motion to dismiss the appeal in this casp must be overruled. The order of the 9'th of Dec. 1882, from which the appeal is taken, dismissed the petition of the appellant, and denied him all relief therein prayed. In the petition it is alleged that the mortgage debt, with all interest thereon, and all costs for which the petitioner was liable, liad been paid, and overpaid; so that there was nothing in fact due from the appellant.

The relief prayed in the petition was that the attempted sale of the mortgaged ⁶⁰⁴ property should, he restrained, and the original decree of sale entered satisfied. The order denying the relief and dismissing the petition was clearly a proper subject of appeal. The only question presented on the appeal is, whether the appellant, as assignee of Rau, the original mortgagor, is liable for the costs incurred by the appellee on an appeal by Rau, taken to this Court, subsequent to the assignment of the mortgaged premises to the appellant by Rau. It appears that the assignment of the leasehold interest held by Rau to the present appellant, subject to a balance due on a mortgage thereof that had been assigned to the present appellee, was made in December, 1877.

Subsequently, that is to say, in June, 1881, an auditor's account was stated, ascertaining the balance due on the mortgage, including all interest and costs to that date, and which account was finally ratified, by an order of the 7th of October, 1881. The