To compel respondent to set aside a levy and sale and recall an execution.

Denied November 20, 1894.

The proceeding grows out of Atkinson vs. Weidner, 79 M., 575; 83 Id., 412, and Fetters vs. Atkinson, 102 M., 485.

Relator paid the full amount of the judgment on the note int*o court and filed his bill. Subsequently the amount of the judgment was paid over, leaving the surplus referred to in the last named case. In some manner an order was afterwards obtained directing the payment over of the surplus to Atkinson, whereupon Swift took out an execution and proceeded to a levy and sale under the judgment in favor of Atkinson. The sur*800plus was afterwards returned to the register and the motion was made to set aside the sale and recall the execution.

The court below held said motion until the determination of Fetters vs. Atkinson, and then denied the same, holding that relator might redeem.