In an áction for foreclosure, a subsequent mortgagee sets up his mortgage, hy answer, and demands that it be pay*122able next from the .surplus. Service of this answer was. made upon all defendants who appeared in the action, and they have failed to take issue. It may be that lienors in priority to the answering.defendant have failed to appear, yet this would not bar their right to priority in the surplus after satisfaction of. plaintiff’s lien, and, accordingly, the answering defendant has not shown himself to be entitled to the direction which he asks. See Code' Civ. Pro. § 521. His remedy is against the surplus. The motion of the plaintiff is, therefore, granted, and the application of the defendant Strasbourger denied, with $10 costs.
Motion granted and application denied, with $10 costs.