Bennett

Appeal from an order denying motion made by defendant Merchants’ Trust Company for a new trial.

The action was to foreclose a mortgage upon certain mining grounds and personal property alleged to have been made, executed and delivered to plaintiff on January 5, 1904, by the Red Cloud Mining Company, which was a mining corporation.

The complaint was in the usual form and, among other things, alleged that defendant Merchants’ Trust Company claimed an interest in the mortgaged property by virtue of a second mortgage thereon, but that said “claim of the said Merchants’ Trust Company by virtue of said mortgage or otherwise is subject to lien of plaintiff’s mortgage, but plaintiff is informed and believes, and therefore avers, that the said mortgage in favor of the said Merchants’ Trust Company is not an encumbrance or lien upon the said property,” it being further alleged that it had never been ratified by the stockholders of the mining company.

The defendant Red Cloud Mining Company demurred to the action, but, upon the same being overruled, interposed no further defense thereto and suffered its default to be entered.

The Merchants’ Trust Company filed an answer whereby it denied…