Epitomized Opinion

One June 10, 1920, the Weiner Co. secured a judgment against Cerny and his wife for $280.75. On . June 20, 1920, the Cernys gave a mortgage to the Trust Co. to secure a loan. Later upon default the Trust' Co. started a suit to foreclose the mortgage. The Weiner Co. filed an answer setting up its judgment as a prior lien. The property' was ordered sold, but the question of priorities was reserved by the court. As the property did not sell-for enough to satisfy both the lien and mortgage, the Trust Co! set up the fact that an original mortgage was given on April 22, 1920, and that this mortgage was called in and the outstanding one given in its stead. The Trust Co. claimed that this entitled it to priority. A motion was filed by the Weiner Co. to strike the reply from the files upon the ground that the judgment of sale was a final order and no further pleading could be filed. As the motion was overruled, the case was heard upon 'the evidence, and the trial court found that the 'Trust Co. was entitled to priority to the extent of the original mortgage, but not to the extent of the outstanding mortgage. The Weiner Co. prosecuted error claiming that there was a departure between the petition and reply. In sustaining the judgment of the lower court, the court of appeals held:

1. While there was a departure in plaintiff’s pleadings, the motion was properly overruled as the defect should have been taken advantage of by a motion to strike only that part of the reply from the files that contained the departure instead of a motion to strike the whole reply from the record.

2. As no bill of exceptions was filed containing the evidence, the question as to whether the judgment was sustained by the evidence cannot be considered.