Norton/Opinion of the Court
| Norton by
Opinion of the Court
casion at the present term, in Bostwick v. Brinkerhoff, 1 SUP. CT. REP. 15; Grant v. Phoenix Mut. Life Ins. Co. Id. 414; and St. Louis, I. M. & S. R. Co. v. Southern Exp. Co., ante, 6, to state the rule applicable to the determination of the question here involved, and we there say: 'A decree is final for the purpose of an appeal * * * when it terminates the litigation between the parties, and leaves nothing to be done but to enforce by execution what has been determined.' Under this rule, we think, this appeal was well taken. The decree settled every question in dispute between the parties, and left nothing to be done but to complete the sale under the proceedings in the state court for foreclosure, and hand over to Norton any surplus of the proceeds there might be after satisfying the debt due Frellsen, as stated in the process under which the sale was made. The case stands precisely as it would if Frellsen were proceeding in the district court for the foreclosure of his mortgage, and a decree had been entered establishing his rights, ascertaining the amount due to him, and ordering a sale of the property and the payment to Norton of the surplus after discharging the mortgage debt. Here the bill was filed by Norton to set aside the proceedings for foreclosure and obtain a conveyance of the mortgaged property. The court refused to set aside the proceedings or to order a conveyance, but did order the sale to go on, and that the proceeds, after the mortgage was satisfied, be paid to Norton. It adjudged the case on the merits in favor of Frellsen as against Norton, and in favor of Norton as against Hood. The bill was not dismissed in form because it asked relief both as against Frellsen and Hood, and relief was granted as against Hood. It was in legal effect dismissed as to Frellsen when the decree was entered in his favor on all the questions in which he was interested.
The writ of mandamus asked for is granted, but without costs.
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