By the Court,
Dixoít, O. J.This is a most anomalous case, in some respects obscure and almost unintelligible. Up to the order setting aside the judgment of May 17th upon the petition of the appellant, the proceedings are easily understood; but *296after that we are in some doubt as to wbat tbe parties intended. It appears that a motion was then made by tbe plaintiff’s attorneys for a finding of law and judgment in favor of tbe plaintiff, upon tbe finding of facts theretofore filed in tbe action ; that this motion was brought to argument “ by an agreement and stipulation on the part of tbe defendants and each and all of them ; ” and that thereupon tbe present judgment, which is tbe third and last rendered in tbe cause, was pronounced and entered. This judgment is in substance tbe very same as that just set aside upon tbe petition of tbe appellant. We are at some loss to determine wbat effect is to be given to the “ agreement and stipulation ” which is so industriously noted in the record. Tbe appellant had not yet answered. She bad bad no opportunity of contesting the-matters which so seriously affected her interests. She bad not been beard on the question of mistake in tbe execution of tbe mortgage, nor whether she was a bona fide bolder for value of that part of tbe premises claimed by her; and it seems to us that she could not be, upon tbe motion. An answer and trial of the facts were requisite for that purpose. It was for that that the judgment was set aside. So far the court was clearly right; for no one will contend that the mortgage could be reformed, materially changing its terms and the cause of action stated in the complaint, and including, instead of a small fraction, the whole of the appellant’s lot, without giving her the privilege of being heard. This principle is familiar and needs no discussion; and the only question with us is, whether the appellant has waived her right. If the intention of the stipulation was to submit the cause finally to the court without answer or proof on the part of the appellant, then I doubt whether there is anything in the exceptions, multitudinous and reiterated as they are, for which the judgment should be reversed. The bill does not purport to contain the whole evidence. The mortgage itself is not set out; and we are not informed whether it contains the words alleged in the answer of the *297defendant Ashcraft to have been left out of tbe complaint. If on tbe other band we regard tbe stipulation as merely that tbe motion might be brought on, a thing which the plaintiff might have done without the stipulation, and which makes it seem almost useless, then T think the exceptions sufficient, and the appellant entitled to a reversal. The motion then differs very little from an application to reinstate the judgment last set aside, which was as clearly wrong, as the order setting it aside was right. The appellant was not bound by the previous finding of facts. This was, in strictness, the effect of the stipulation as set forth in the record, and we are inclined to it, especially as such construction favors the justice of the case by giving the appellant her day in court, of which she would otherwise be deprived.
Let tbe judgment be reversed, and the cause remanded for further proceedings according to law.