Nevills

Motion to dismiss the appeal.

The complaint herein seeks the foreclosure of a mortgage given to secure two promissory notes executed to the plaintiff by the defendants. In their answer the defendants, in addition to other defenses, allege that the plaintiff subsequent to the execution of the notes had extended the time for their payment, and that this time had not expired when the complaint was filed. The court found this fact in accordance with the answer, and thereupon entered judgment that the action “is hereby dismissed on the sole ground that it was prematurely. brought; such dismissal, however, not to be a bar to another action, and defendants to recover their costs herein.” From this judgment the defendants have appealed.

After the brief of the appellants had been filed, the respondent moved to dismiss their appeal upon the ground that, as the judgment was rendered in favor of the appellants, they are not “aggrieved,” and therefore have no right of appeal. That portion of the judgment, however, which declares that the dismissal is not to be a bar to another action was not in accord anee with the prayer of their answer and is in form a judgment against them. They have,…