Carstenbrook

The 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. The 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. The cause is transferred to the supreme court. Hart, J., and Chipman, P. J., concurred. On 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:

Respondents 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. *Page 471 It 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,…