The opinion
On PETITION TO REHEAR.
The petition to rehear filed by the complainants, Wattenbarger, in the second paragraph thereof states “the decision appears to be based upon the ruling that the decree of the Chancery Court was neither a final decree, nor an appealable interlocutory decree, nor one ‘ affecting the jurisdiction or power, amounting to an illegality that is fundamental, as distinguished from an irregularity’ With deference to petitioners’ counsel the Court did not hold that it was not an appealable interlocutory decree. What the Court did hold was first, that it was not a final decree from which an appeal would lie as a matter of right, and secondly, that even though it is an interlocutory decree it was not a proper case for the allowance of certiorari and supersedeas, even though it be conceded for the sake of discussion that the petitioners’ contention set out on page 8 of his brief, be absolutely correct in every detail including the alleged insolvency of the Tullocks. The opinion then attempts to demonstrate that the complainants were in no danger of irreparable injury. In doing so it appears that the Court was mistaken in stating that the record does not show that the Tullocks are insolvent. This does not, however, in our opinion, change the situation in any material aspect and we reaffirm what is said in the original opinion, with that exception, as to why the. complainants are not in danger of irreparable injury.
In the petition to rehear it is asserted that:
“Petitioners do not disagree with the statements of the general rule and cases of partition and tort actions, However, it is said the suit at Bar is neither, *292 but is one to fix priority of lienors in the nature of a suit for exoneration of surety or for the release of security. Further, that the Court overlooked a well recognized exception to the general rule, viz.: — that where priority is sought but not definitely fixed by the 'Court in advance of a decree of sale of the lien property, it is an appealable decree; and it may be brought to a superior Court for correction, because it vitally affects the salableness of the lien property, and is ‘fundamental,’ affording grounds for writs of certiorari and supersedeas, if necessary, to correct the decree by definitely fixing the amount and order of priority in the proceeds of common lien property, especially where it definitely appears the common debtor is insolvent as admitted by the amended answer in this cause.”
The first case relied on by petitioner is West v. Weaver, 50 Tenn. 589 .
This case merely holds that the Chancellor had a right in his discretion, to allow an appeal from an interlocutory decree or order, but not that it was appealable as a final decree. See analysis of this case in Vineyard v. Vineyard, 26 Tenn. App. 232 , 170 S. W. (2d) 917 , cited in the original opinion.
The statute very clearly gives the Chancellor a right to grant an appeal from an interlocutory order or decree and whether or not the Chancellor sees fit either to grant it or deny it, the Appellate Court will not interfere, unless it is shown that the Chancellor abused his discretion. In the instant case we do not think that he did abuse it.
Petitioner relies also on Ponte v. Bethel, 56 Tenn. 666 . This case holds that the mortgage debtor had a right to show the correct balance due on his mortgage debt before *293 the property is ordered to be sold and that, while the answer of the defendant confessed a certain amount of usury and he was bound, therefore, by his answer, the complainant debtor nevertheless was entitled to show whether he was entitled to additional credit.
The instant ease may be distinguished on two grounds. First, because the instant ease was heard on bill and answer according to the statements in the briefs, and in that situation the complainant necessarily admitted the averments of the answer to be true as to the amount of the debt. Gibson’s Suits in Chancery, Secs. 438-439.
Second, in the instant ease it is not the Tullocks, the debtors, who are complaining, but it is the petitioners who are the second mortgagees. The original opinion has fully detailed the ways in which the second mortgagees may protect themselves and need not be here repeated.
The third case relied upon by petitioner is Cockrill v. Peoples Savings Bank, 155 Tenn. 342 , 293 S. W. 996 . The facts of that case are that the complainant’s surety sought only to enjoin the defendant Bant, who was its principal on several fiduciary bonds the conditions of which had been breached by the Bank, from foreclosing the mortgage held by the Bank on the surety’s property until the amount of the surety’s liability on said bonds could be determined in order that the surety might have exoneration pro tanto by way of equitable set-off, the Bank being insolvent. That is to say, the surety was indebted to the Bank personally for which the Bank had security on the surety’s property, whereas the insolvent Bank had breached several fiduciary bonds and this surety would be called on to pay the principal’s liability and it was to adjust these mutual debts and to exonerate *294 the surety pro tanto that brought about the surety’s suit to enjoin the foreclosure on the debt the surety personally owed the Bank
The only relief sought was an injunction which was denied by the Court but the Chancellor retained the cause in Court so that the opinion states:
“A case is thus presented to us by the petitioner in which the Chancellor rendered a decree denying all relief sought by the complainant, final in fact, though not so on its face, and petitioner is without other remedy to review the proceedings below.”
That is not the situation in the instant case, as reference to the original opinion will readily disclose.
We do not find any merit in the petition to rehear and the same is, accordingly, overruled.