Pormer opinion modified and rehearing denied June 22, 1920.
Petition for Rehearing.
(190 Pac. 577.)
On petition for rehearing. Modified and Rehearing Denied. ,
Mr. II. E. Slattery, for plaintiff-appellant.
*565Mr. A. C. Shaw and Mr. Jesse G. Wells, for defendants and cross-appellants.
BENNETT, J.In this case there is a petition for rehearing on behalf of plaintiff, and another in behalf of defendants Gross and McCallnm.
The plaintiff claims that she is still not fully protected by the decree outlined in the original opinion, and the defendants Gross and McCallnm ask that the decree shall provide that execution issue in favor of the defendants, Nancy J. Shelley and J. M. Shelley, against the plaintiff, as well as Mc-Callum and Gross, and also that it adjudicate the rights of these latter defendants among themselves.
It is claimed that the defendant McCallnm has paid $180.00 more than Gross and that this should be taken account of, and that the decree should also provide for a judgment over, in case one of these defendants shall prove insolvent, or one shall be compelled to pay more than his share.
Of course the plaintiff is entitled to recompense for any loss she may suffer by reason of the default of the defendants, and the decree in this case should provide for -a judgment in her favor-against each of the defendants, for one-sixth of the market value of the property in question, in case it is sold on foreclosure, as in the decree provided, less any sums which may have been otherwise realized by plaintiff on such one sixth interest. She would not be entitled to recover the excess paid by her, as that might be much more than the real value of the property. The decree. will provide that the Circuit Court shall retain jurisdiction of the cause, to find the value of the property and the amount of plaintiff’s claim remaining unsatisfied, if any, at the end *566of a foreclosure proceeding, and to enter general judgments in favor of the plaintiff therefor in -accordance with foregoing.
We think the pleadings and the record of the appeal are not in such shape that we 'can give the Shelley defendants a personal decree against the plaintiff, or against the Matlock estate, and in that regard the decree of the court below must stand. Neither do we think there are any issues made by the pleadings upon which we could try out the rights of Gross and McCallum, as between themselves. They make no separate appearance but join in one answer. There is no allegation that one has paid more than the other, and no allegation that either is insolvent, and no prayer for relief as between each other. The decree, however, should be without prejudice to the rights of either, as against the other, which may grow out of the transaction.
We think, however, that the previous opinion should be modified as to the distribution of any amount received from a foreclosure (if there shall be any) after satisfying the claim of Mr. and Mrs. Shelley, and the claim of the plaintiff, so that such surplus shall be divided between the, defendants Gross and-McCallum in proportion to the amounts which shall have been previously collected from each, rather than by equal division, as indicated in the original opinion, and that the court below shall retain jurisdiction to fix such amounts, if that shall be necessary. In all other respects the original opinion is adhered to. The petitions for rehearing are denied'.
Opinion Modified and Rehearing Denied.
McBride, C. J., and Bean and Johns, JJ., concur.