Merriam

Petitioner seeks a writ of prohibition to prevent the trial court from entering a judgment foreshadowed by an opinion already filed in the case of Merriam, as Executor o.f the Will and Estate of Alice E. Day, v. Poster et al. Leave was granted to file the petition and order to show cause so issued. In response to the order to show cause, respondent filed an answer and the matter was submitted for decision on argument and briefs.

It appears from the. petition and reply that Merriam, as executor of the will and estate of Alice E. Day, filed a complaint for the foreclosure of a mortgage upon certain real estate in Arizona given to secure a promissory note for $33,543.21 by S. A. Poster, Lena Poster, Walter Poster, and Hattie Poster. It was alleged in the complaint that the amount due upon the’note was $53,462.77, including interest, and the value of the real estate was not to exceed $5,000. The defend-" ants’ answer admitted the execution of the mortgage, but alleged that the mortgage was given in connection with, and as a part of, the copartnership agreement of the same date as the note, December 17, 1919, and executed at the same time. Defendants admitted that no payments had been…