I concur in the judgment.

On motion for rehearing, the Court, by Mr. Chief Justice Sawyer, delivered the following opinion:

It may be conceded that, in an action to foreclose a mortgage by the indorser of a note and assignor of a mortgage made to secure it, regularly transferred in the ordinary course of business, it would not be necessary to make the mortgagor and assignor a party; for, if this be so, as it undoubtedly is, it by no means follows that the mortgagee would not be a necessary party to a suit by one claiming to establish against him, as the basis of his title to foreclosure, a right to be regarded as an equitable assignee upon a state of facts which gives him no title at law, and no right that can be recog *401 nizecl, except as it may be established in, and worked out through the aid of, a Court of equity. But the question in this case is not, who would be proper parties in an original suit brought by Abadie to foreclose a mortgage assigned to him; nor whether, with the assent of Temple, the j udgment might be opened and a supplemental complaint filed and prosecuted in his name, as suggested in Boggs v. Hargrave; nor whether, if, after having received the money upon a claim by Abadie to redeem under the statute, and recognize the redemption, Temple refused to allow the use of his name for the purpose of opening the judgment and further prosecution of the suit, the Court would compel him, in a proper proceeding, to assign his demand and judgment to Abadie, or to allow the use of his name, or would grant relief in an independent action against Temple and the mortgagors and their grantors, setting up such refusal of Temple as an excuse for not proceeding in his name in the original suit. The appellant has not presented hiifiself in such a way as to make it necessary to determine any of these questions. Standing as he does, viewing his right in the light most favorable to himself, in the position of a mere statutory redemptioner from a sale on execution, or of an assignor of the certificate of sale, we suggested some difficulties in respect to his obtaining relief of the kind here sought. But we decided the case on the ground that the plaintiff was not entitled to vacate Temple’s judgment, and seek the relief in his own name in Temple’s suit, through a proceeding to which Temple and his representatives are total strangers.

The case, in short, is this: Temple brought suit against the mortgagors to enforce his mortgage lien, making Abadie a party defendant, but without serving him; so that Abadie, in effect, though named as defendant in the complaint, was no party to this action; and the suit was between Temple, as plaintiff, and the original mortgagors, as defendants. Final judgment was entered in favor of Temple, ordering a sale of *402 the mortgaged premises, and a sale was accordingly had, and Temple became the purchaser. This is all there is of the proceeding in the case to which Temple or his representatives was ever a party. Temple died, leaving the matter in this condition, so far as anything appears in a form having any binding force on him or his representatives. After his death, upon an ex parte application of appellant, Abadie—a stranger to the action—the judgment was vacated, and Abadie substituted as plaintiff. We say ex parte, because Temple, the sole plaintiff in the case, was dead, and nothing had been done to bring in his representatives. Lobero and wife and Dibblee—the latter being the only defendant who then had any interest in the premises, and all of whom had become interested in the property, without notice, pending the action—had not yet been made parties to the suit; and the original defendants, who, at that time, had no interest in the land, do not appear to have been notified. After thus obtaining ex parte a vacation of the judgment, and an order substituting himself as jfiaintiff, Abadie filed what he calls a supplemental complaint in his own name against defendants Lobero and wife and Dibblee, alleging the conveyance by the mortgagors of the mortgaged property to them successsvely pendente lite, and that he himself had redeemed from Temple, and acquired his interest. He then introduces as a new cause of action another subsequent mortgage from the original mortgagors, Oliverez and wife, to third parties, which he claims to have acquired through certain other proceedings, and seeks to have this foreclosed. He also alleges a conversion by Oliverez and wife of one hundred twenty-three head of steers, one hundred seventy-seven head of breeding cows, and fifty calves, of the value of seven thousand dollars, the value of which ho seeks to recover, and have the amount satisfied out of the proceeds of the mortgaged premises. In short, without noticing various other singularities, the whole proceeding shown by the record is a legal curiosity—a novelty in judicial procedure.

*403 This entire proceeding is utterly void as to Temple and his representatives. Abadie is an intruder into Temple’s action, after he has obtained a judgment. Temple and his representatives are in no way affected by his action. The facts upon which Abadie seeks to base his claim might be shown by Temple to be fabricated. At all events, Temple has not been heard, and is not affected by the proceeding, and the defendants would not be protected as against Temple’s representatives, by any judgment that might be rendered in the case. The original judgment, and, of course, all proceedings under it, were vacated, and a new plaintiff has assumed control. The next judgment, including accumulating interest, may be for a much larger sum, and the question might arise, who is entitled to the excess over the former judgment? Appellant has improperly and illegally thrust himself into Temple’s suit, and he has no right to manage or direct it, or to any relief in it, under the circumstances in which he presents himself. If this proceeding should be sanctioned, there is no judgment rendered that could not be vacated, and the original plaintiff displaced, upon an ex parte application of a stranger and intruder, and there would be an end to everything like an orderly administration of justice. For aught that appears, Temple’s representatives are ignorant of this proceeding to the present day. After Temple’s death, no valid movement in the case adverse to his interest could be made without bringing in his representatives and giving them an opportunity to be heard—certainly none that should displace him as plaintiff in the action.

Rehearing denied.

Mr. Justice Crockett dissented, and Mr. Justice Sprague expressed no opinion.