Hollister, J., delivered the opinion.
Whitson, J., concurred. Noggle, C. J., dissented. The original bill, on which the decree which this proceeding seeks to correct, was filed in the district court of Ada county, on the nineteenth day of October, 1869, for the foreclosure of a mortgage executed by the defendant N. *540Lamberson to plaintiff, conveying to tbe plaintiff tbe west half and tbe nortb-east quarter of tbe nortb-east quarter of section 4, in Ada county, excepting, etc., and sucb proceedings were tbereon bad, that on tbe twentieth day of April, 1870, a decree was rendered by tbe court against Lamberson in favor of tbe plaintiff for tbe sum of one thousand and seventy-three dollars and eleven cents, and an order entered that tbe premises be sold.
On tbe ninth of May following, tbe clerk of tbe court issued an order to tbe sheriff for tbe sale of tbe premises, which was returned by order of plaintiffs' attorneys, without any sale, on tbe twenty-second day of the succeeding June. A mistake in tbe description of tbe premises thus conveyed and decreed to be sold, having been discovered after tbe decree bad been enrolled, the plaintiff presented bis petition to tbe court, duly verified, on tbe eleventh day of November, 1871, asking leave to file bis bill of review, for tbe purpose of having tbe decree corrected so that it might conform to tbe description of tbe premises-which tbe defendant, N. Lamberson, in and by bis said mortgage, intended to convey. Of tbe time and place for presenting tbe petition, this defendant bad due notice, and tbe court, on tbe eleventh day of November, 1871, after a full bearing of counsel on both sides, granted sucb leave. On tbe twelfth day of February following, tbe bill of review was filed. Tbe defendant, Hull, who was made a party to tbe proceeding, failing to answer, was defaulted, and on tbe sixteenth of March, tbe defendant,.N. Lamberson, put in bis demurrer, denying in general terms the equities of tbe bill, and at tbe same time filed bis answer, by which it was disclosed that since tbe decree in tbe original ease was rendered, be bad intermarried with tbe defendant, Hannah Lamberson, and that she bad an interest in the subject-matter of tbe suit.
Exceptions were taken by the plaintiff to several portions of tbe answer, which were overruled by tbe court, and on leave given, be filed bis amended bill, making the defendant, Hannah Lamberson, a party to tbe action. Tbe amended bill contained tbe averments of mistake, etc., as stated in tbe original bill.
*541On tbe tentli of October following, tbe defendant, N. Lamberson, entered bis motion to strike tbe amended bill from tbe files, on tbe ground that it did not any longer purport to be a bill of review, but a new and independent action, to reform tbe contract and decree. On tbe same day be and tbe defendant, Hannab Lamberson, interposed tbeir separate demurrers to tbe amended bill, and