Our consideration of this case was confined to the ruling of the court upon defendants' (appellants') exceptions to plaintiff's (appellee's) supplemental bill, and in such consideration the allegations therein were assumed by us to be true, and, acting upon such assumption, we held that it showed no ground in this case for the relief asked, and that the court erred in overruling the exceptions and refusing to dismiss the bill. This rendered a consideration of the evidence upon the trial unnecessary, and consequently no conclusions of fact were made nor required; and, if we have not totally misconceived the law, the conclusions asked in the motion are foreign to a proper consideration of this appeal.
Our judgment in this case was not based upon a lack of jurisdiction of the District Court over the matters involved in appellee's bill, nor was it made without mature consideration of them in the light of such knowledge of the principles of law and equity as is possessed by the members of this court. After giving the matters contained in the bill such consideration, we reached the conclusions expressed in the opinion; and after giving the same consideration to the motion before us, as well as to the argument thereon of learned counsel, our conclusions remain the same.
The principle, that if there are simultaneous liens on the same land, the surplus remaining after satisfaction of a decree of foreclosure on one of them is applicable to the payment of the other, is uncontroverted, and that it may be invoked in the proper proceeding by one who has the right to such application is undisputed. Nor does the omission, in a judgment foreclosing such lien, to direct what disposition shall be made of the surplus prejudice such right, or prevent him, upon proper proceedings, from obtaining such application of the surplus. The proceedings by which it is sought to be done in this case alone are *Page 590 questioned. The judgment rendered in this case on April 17, 1895, was in accordance with the pleadings and prayer for relief, was by a court of competent jurisdiction, and disposed of every issue in the case. It was final. It could be altered or amended only in a direct proceeding brought for that purpose. But it is contended by counsel for appellees that it was neither altered nor amended by the proceedings on his bill.
In the supplemental bill it is alleged, "That in entering the judgment of April 17, 1895, there was an omission to reserve and fix any lien on the surplus after satisfying said judgment, or to make any disposition of such surplus." It is this omission that is sought to be supplied by an order directing the receiver, who is not a party to the bill, but appointed in another case, to sell the property, and out of the proceeds first pay the judgment, and to hold the surplus subject to appellee's vendor's lien for the security and payment of the two other notes for $600 each, and by ordering such surplus applied to the payment of the other two notes. The order prayed for was granted. It adjudges a lien on the property upon which the lien was originally foreclosed for an additional amount of over twelve hundred dollars; it, in effect, sets aside its provisions for the ordinary process for sale and orders it sold by Mr. Hankinson, a receiver in another case, who is not a party to this suit, and directs him, after satisfying the judgment from the proceeds, to hold the surplus subject to the satisfaction of the newly adjudged liens. If this does not amend or alter the judgment, we are unable to characterize its effect. Even in the Federal courts where a "supplemental bill" is "not a misnomer," it is an established principle that the power does not exist in them, after the lapse of the term at which a judgment or decree is entered, to so change or modify it as to substantially vary or affect it in any material thing. Bronson v. Schulten,104 U.S. 410; Doe v. Waterloo Min. Co., 60 Fed. Rep., 643.
With due respect to the learning and ability of appellee's counsel, the motions are overruled.
Overruled.
Writ of error refused. *Page 591