ON REHEARING.
QUARLES, C. J.The appellants have filed a petition for rehearing, in which it is insisted that the decision in this case lays down the rule that an action can be maintained upon the return of the sheriff for a deficiency in proceedings under a decree of mortgage foreclosure without judgment for such deficiency having been docketed as required by the statute. This court did not intend to so hold, and the decision in .this case does not so hold. The facts stated in the complaint, which is set forth in the original opinion herein, are sufficient, after judgment, to show that a judgment for the' deficiency remaining after sale of the mortgaged property was docketed, or at least enough to make that inference necessary from what is stated in the complaint. The complaint shows that the sheriff made *571his return showing the deficiency. It then became the duty of the clerk to docket judgment for such deficiency, and the law presumes that he did iso, in the absence of a showing to the contrary. However, if the clerk failed to perform this duty, that matter could be shown by way of defense, and should have been pleaded by the appellants, which they failed to do. The petition for rehearing is denied.
Sullivan and Stockslager, JJ., concur.