
    AARON CRONCKHITE vs. OLE ELLEFSON and Wife, Appellants.
    APPEAL PROM circuit COURT, WAUPACCA COUNTY.
    Heard July 19.]
    [Decided August 16, 1859.
    
      Foreclosure — Amendment—Appeal.
    After a sale of mortgaged premises upon a foreclosure of a mortgage, the complainant moved the court, and obtained an order for leave to amend the summons and complaint, hy adding a new defendant as a subsequent incum-brancer. This is not an appealable order.
    This case was brought into this court by an appeal from an order made in the court below, under the following circumstances : On the 27th of May, 1858, the plaintiff obtained a judgment by foreclosure upon a mortgage made by the defendants; and a sale of the mortgaged premises took place, September 18, 1858. Before the commencement of the action the defendants had encumbered the mortgaged premises to Olof E. Dreutzer and N. P. Judson; but they were not made parties defendants to the action for the reason that the plaintiff did not know they were such incumbran-cers until after the judgment had been entered. On the 26th of May, 1859, the plaintiff moved the court to set aside the judgment, sale and all subsequent proceedings in the action; and that the plaintiff amended the summons and complaint by making Dreutzer and Judson parties. On the 27th of May, 1859, the circuit court entered the order from which this appeal is taken; and which after reciting the motion proceeds:
    “ Ordered. That, the judgment, sale and all subsequent proceedings in the action be set aside and the plaintiff be allowed to amend the summons and complaint therein by adding Olof E. Dreutzer and N. P. Judson as defendants. It is further ordered, as the terms of granting said motion, that the plaintiff further amend the said complaint, by striking out that part of the prayer for relief, in said complaint, which prays for judgment of deficiency against any of said defendants, in case there should be any deficiency on the sale of the said mortgaged premises.-”
    
      Wheeler & Kimball,
    
    on the 13th of July, 1859, served by mail a notice of motion for the 19th ; and on the latter day moved this court to dismiss this appeal, for the reason that the order cannot be carried to the supreme court by appeal, according to the provisions of the Revised Statutes.
    
      Smith, Keyes & Gay, for the appellants,
    opposed the motion, because: 1. The service of the notice was too short; 2. The order was an appealable order; and, 3. The order grants a new trial in fact. Rev. Stat., chap. 140, § 40; id. chap. 39; id. chap 139, § 10.
   By the Court,

DixoN, C. J.

The motion of the respondent must be allowed, and the appeal dismissed. The order was not appealable.  