The action was brought to set aside the release and satisfaction of a certain chattel mortgage and to have said mortgage, given by said defendants to one Wallace Dinsmore, determined and declared to be in full force and effect and to have plaintiffs adjudged to be the owners and holders of said mortgage and the note secured thereby and entitled to the full payment of all the sums so secured, and also to have said mortgage foreclosed.
The relief sought by the complaint, involving as it does "equitable subrogation" and foreclosure, is a matter peculiarly of equitable cognizance and the appeal should not have been taken to this court.
The cause is transferred to the supreme court.
Hart, J., and Chipman, P. J., concurred.
On the sixth day of January, 1908, the cause was retransferred by the supreme court to this court for determination, and on the 23d of January, 1908, the following opinion was rendered: