[No brief on file.]
By the COURT:
Wichelhausen held a judgment against Johnson which has been assigned to Josephine Kohlberg, the plaintiff here.
Johnson, the judgment defendant, was at the same time a creditor of Benton, the defendant's intestate, and held a mortgage upon the property of the latter to secure his debt. It would appear that some proceedings of garnishment had been instituted by Wichelhausen against Benton as a debtor of Johnson, but the record does not set them out. Subsequently Johnson brought an action against Benton to foreclose the mortgage. The Court inserted a direction in the decree of foreclosure that a named amount of the moneys realized at the foreclosure sale should be applied by the Sheriff to satisfy the Wichelhausen judgment against Johnson.
This direction seems to have been complied with by the Sheriff, and the moneys arising upon the foreclosure sale have been applied to the payment of the Wichelhausen judgment, but a large balance of that judgment remains unsatisfied. Under these circumstances, Benton having in the meantime departed this life, the plaintiff makes claim against his estate for the unpaid balance of the Wichelhausen judgment.
A demurrer was interposed to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and we are of opinion that it should have been sustained.
As remarked in substance already, the action does not rest upon the proceedings in garnishment, whatever they were, but altogether upon the direction we have referred to as contained in the Johnson-Benton decree. *Page 269
Supposing that Wichelhausen or his assignee, the plaintiff here, had been a party to the foreclosure decree in which this direction is found — which neither of them was — it is to be observed that the entire scope of the decree in that respect was limited to the appropriation of a portion of the proceeds of themortgage sale to satisfy the Wichelhausen judgment. There was no judgment that Benton or his estate should be generally liable to pay the Wichelhausen-Johnson judgment. Johnson seems to be still the owner of the decree he obtained against Benton, and the liability of the estate of Benton, if any, thereon, would be to Johnson and not to the plaintiff here nor her assignee.
Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint. *Page 399