Opinion bt
Mb. Justice Mitchell,Appellants after an assignment for the benefit of creditors, having made settlement with all the creditors except one, applied to the court for an order on the assignee to reconvey. This was granted upon the deposit in court of the fund now in controversy to secure the objecting creditor. The order for reassignment originally contained a provision for the appointment of an auditor to determine the amount due, but on the objection of the creditor who desired her claim passed upon by a jury, this was struck out by the court.
Under these circumstances, the regular practice would have been for the creditor to apply to the court for an issue. But apparently without objection from any one, the creditor brought suit in a different court. That terminated in a discontinuance, and a new suit was then brought in the court where the fund is. The appellant then moved the latter, court to appoint an auditor to distribute the fund. This was refused, and from the refusal we have this appeal.
Prom this statement it is apparent that the appeal is premature. There is no final judgment or decree. Undoubtedly a court with equity powers, having a fund in its custody, may require the claimant to proceed diligently to ascertain how much is due him. In the present case the money, $6,700, is the money of the appellants, and will so continue until it or the proper part of it is awarded to the creditor, and if the latter is tardy in the legal assertion of her claim, or dilatory in the prosecution of it, the court may determine the question for itself or release the fund. It is the right of the depositing debtor not to have his *289money tied up indefinitely or perversely by the creditor for whom it is as yet only a security.
But the court below, on this application, had before it the circumstances under which the delay in the first action occurred, and it was within its discretion'to await the settlement of the claim by a jury in the action now pending on its own docket, and then award the fund in accordance with the judgment, rather than by a summary proceeding before an auditor.
There was no approach to an abuse of discretion, and there is no other ground on which the case is as yet open to our review.
Appeal quashed.