Respondents, on petition for rehearing, urge that the original opinion should have modified, instead of having reversed, the judgment of the lower court.
The appeal herein was from "that certain portion of the Decree . . . . whereby it was adjudged that the lien of this defendant and cross-complainant . . . . was inferior to and subject to the liens of the plaintiffs . . . . , this . . . . Appeal being from each and every portion of the said Decree, wherein it is adjudged that the lien of the plaintiffs and each and all of them, . . . . is superior to or prior to the lien of this cross-complainant in any respect whatever, and from that portion of the said decree and all portions of said decree by which it is adjudged that upon the sale of the mortgaged property, the proceeds thereof shall be applied to the claims of the plaintiffs, before being applied to the claims of this defendant and cross-complainant."
Such an appeal and the record did not require the reversal of several important features of the judgment. The original opinion is hereby changed that the judgment be "modified" instead of "reversed." In making this change, we do not pass upon or mean to be understood as determining whether any sale suggested in the petition as having been made should or should not be vacated. If it becomes necessary or proper for the lower court, in modifying and carrying out such judgment, to make restitution of any property or rights lost, that matter, in the absence of a showing here, should be left to the determination of the lower court in the first instance.
A rehearing is denied.
William A. Lee, C.J., and Wm. E. Lee and Givens, JJ., concur. *Page 422