
    R. M. Mosby, Assignee, etc., v. Wm. Howell.
    Mortgages — Assignee in Bankruptcy a Party to Foreclosure.
    An assignee in bankruptcy can not make himself a party to a proceeding to foreclose a mortgage executed by the bankrupt, after judgment of foreclosure has been'rendered.
    APPEAL EROM LARUE CIRCUIT COURT.
    January 4, 1872.
   Opinion oe the Court by

Judge Peters :

On the 27th of September, 1871, appellant, as assignee in bankruptcy of H. S. Johnson, presented his petition, and moved the court below for reasons stated'in said petition to be made a defendant in the suit of William Howell, etc., against said Johnson, etc., brought, as it appears from the petition, by the plaintiff below, against Johnson to foreclose a mortgage executed by the latter to the former. The court below overruled the motion, and to reverse the order overruling said motion this appeal is prosecuted. A transcript of the record and proceedings in the case are not presented to this court.

But from the petition it appears that a final judgment foreclosing the mortgage, and ordering a sale of the mortgaged property had been rendered in April, 1871, at a term of the court preceding the one at which the petition was filed and the motion made. Johnson was a party to that suit and may have presented all the matters of defense relied on in the petition of appellant from anything that appears in the record. And if he did not, no reason is shown for his failure to do so.

Lee &.Rodman, for appellant.

Sowell, for appellee.

Besides, appellant had become the assignee in bankruptcy of Johnson before the final judgment was rendered in the case, and no sufficient excuse is offered for not presenting the petition and making the motion before the rendition of said judgment. It is not shown in the petition that appellant was a necessary party.

After judgment the court had no power to set it aside, or modify it, unless upon grounds discovered after the trial. And no such discovery is alleged in the petition.

Wherefore, the judgment is affirmed.  