Wilson

This is an appeal by plaintiff from an order granting the motion of the defendants Joost for a new trial.

Plaintiff brought an action to foreclose a mortgage upon real estate, executed by defendant Henry M. G. Dahler to the German Savings and Loan Society, to secure payment of a promissory note for the sum of $5,000, • dated December 30, 1893. Behrend Joost and Martin B. Joost were made parties defendant as claiming some interest in the property, which was alleged to be subsequent and subordinate to the mortgage. The mortgage and note were assigned to plaintiff before suit.

Behrend Joost and Martin B. Joost answered the complaint, and set up affirmative matter, upon which the court made no finding. The motion for a new trial was made upon the ground, among others, that the court erred in failing to make findings upon the issues presented by the answer of the Joosts, and was properly granted for this reason. The issues presented by the answer were material. The answer alleged facts from which it appeared that defendant Martin B. Joost was a beneficial owner of one-third of the mortgaged property and that Maurice Dore at the time of his death—which was after the execution of the…