¶1The action was brought to set aside the release and satisfaction of a certain chattel mortgage and to have said mortgage, given by said defendants to one Wallace Dinsmore, determined and declared to be in full force and effect and to have plaintiffs adjudged to be the owners and holders of said mortgage and the note secured thereby and entitled to the full payment of all the sums so secured, and also to have said mortgage foreclosed.
¶2The relief sought by the complaint, involving as it does "equitable subrogation" and foreclosure, is a matter peculiarly of equitable cognizance and the appeal should not have been taken to this court.
¶3The cause is transferred to the supreme court.
¶4Hart, J., and Chipman, P. J., concurred.
¶5On the sixth day of January, 1908, the cause was retransferred by the supreme court to this court for determination, and on the 23d of January, 1908, the following opinion was rendered:
¶6Respondents in their petition for rehearing state that they "assign as their grounds for a rehearing herein certain matters which existed with relation to said cause at the time of the hearing, and which were not plainly set forth in the record." As a matter of fact they were not set forth in the record at all, and, of course, cannot be considered by us. *471
¶7It is claimed that this action was not instituted until the property subject to the chattel mortgage had been released from attachment in pursuance of a bond; and that said undertaking was in the sum of $700, while the amount of the judgment in the original action was $867.40, and that the said property is not now subject to execution in that action, and therefore respondents' only remedy to secure reimbursement for the payment of the amount due on the mortgage is to be subrogated to the rights of the mortgagee. No reason is stated why the amount of the undertaking is so small nor why the property was not returned to the sheriff or its full value paid to plaintiffs as contemplated by section 553 of the Code of Civil Procedure. However, it inferentially appears in the petition that the original judgment was paid, plaintiffs probably satisfying it upon the theory that subrogation would lie for the $1,508.
¶8These additional matters of equitable cognizance stated and implied in the said petition are of persuasive force, but they are outside of the record and would not justify us in granting a rehearing; but as the cause was ordered back for a new trial we can see no reason why plaintiffs should not be permitted to amend their complaint, setting up the additional facts which in their opinion render the remedy provided by the statute inadequate or inoperative. In case this is done and the judgment should be for respondents, we invite the consideration of the learned trial judge to the question whether the amount recovered should not be limited to the amount actually paid out by plaintiffs, with the legal rate of interest.
¶9The rehearing is denied.