Epitomized Opinion

Appeal from Cuyahoga Common Pleas. Houck sued to foreclose a mortgage against Kaplan, and Feighan Realty Investment Company was made a party defendant, as having a lien on the property. The company failed to file an answer or cross-petition. Judgment was taken by Houck, a decree entered and the property sold without disposing of the company’s interest. Lutton bought the property and sold it to Drexmore Realty and Investment Company. Thereafter the Feighan Company filed a cross-petition setting up its lien and asking for a resale of the property. Upon a rehearing-the trial court dismissed the cross-petition. From this judgment Feighan Co. appealed. The Court of Appeals held:

1. If the Feighan Company had not been made a party it could file an .original petition setting up its claim and have a resale of the property. As the company’s mortgage is a lien upon the property it can set up its rights by a cross-petition in the original action or by filing an original petition.

2. If the. court had found and adjudicated the lien of the Feighan Company or held that they did not have a lien and were barred, the situation would be otherwise; but. the instant case comes under the íule of 68 OS. 523.