New Trial—Parties—Law of the Case—Case Overruled.—Judgment was entered in this case in favor of the plaintiff and of the intervenor, but a new trial was granted, which on a former appeal (reported 57 Cal. 12) was affirmed as to the plaintiff, but reversed as to the intervenor on the ground that the notice of motion was not addressed to or served upon him.

Held: In the absence of notice to all the adverse parties, the Superior Court should have denied the motion for a new trial as to all the parties. That point was not made or considered by this Court on the former appeal, and the appeal was decided upon different principles; but the ruling of the Court upon the former appeal has become the law of the case.

Id.—Id.—Id.—Judgment—Appeal.—Where a new trial has been granted as to some of the antagonistic parties, the findings are set aside which determine the rights of such parties, and as to them the case stands as if it had never been tried; but the judgment and findings, in so far as they purport to determine the rights of the moving parties, and those as to whom the new trial has been denied, continue to exist, and the judgment is appealable.

Mortgage—Pledge—Marshaling of Securities.—B. and K., partners, mortgaged land held by them in common, and at the same time pledged certain stock (found by the Court to be partnership assets) to secure the mortgage debt) Shortly afterwards they partitioned the land between them, and K., having paid one half of the debt, obtained from the mortgagee a release of his land from the mortgage. B. and K., as partners, were adjudicated bankrupts, and the mortgagee delivered the stock to the intervenor, their assignee in bankruptcy, who claimed the right to detain the same. This action was brought by the-assignee of the mortgagee to foreclose the mortgage.

Held: There can be no doubt that the intervenor, as assignee in bankruptcy, can have no property in the stock which is not subject to the lien of the mortgage, and that the appellants may insist that it be sold, and the proceeds applied to the mortgage note to reduce the lien on the land and the personal liability of D.