Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Short v. Stutsman et al.

not be bound by such subsequent promise, unless there was some new consideration for it, to which instruction the plaintiff at the time, by counsel, excepted.

“And the court further states, that the defendants were allowed, over the objection of the plaintiff, to introduce evidence that said Alfred Short personally owned said notes mentioned in the complaint. The plaintiff objected to said evidence because of irrelevance. The court also instructed the jury that if they should find from the evidence that said Alfred Short personally owned said notes before and at the commencement of this suit, the plaintiff could not recover, to which instruction the plaintiff at the time, by counsel, excepted.”

The appellees insist that the questions presented did not arise, and were not decided by the lower court, during the progress of the cause, and, therefore, no question arises for the decision of this court.

For the purpose of determining this question, it is not necessary to set out the pleadings nor the residue of the record. Section 317 of the code reads: “ Either party may reserve any question of law decided by the court during the progress of the cause, for the decision of the Supreme Court. Any question of law so reserved may be taken to the Supreme Court upon the bill of exceptions showing the decision, or, if it arises on demurrer, upon the pleadings involved. When the question so reserved is shown by bill of exceptions, the party excepting shall notify the court that he intends to take the question of law to the Supreme Court upon the bill of exceptions only; and the court shall thereupon cause the bill of ceptions to be so made that it will distinctly and briefly embrace so much of the record of the cause only and the statement of the court, as will enable the Supreme Court to apprehend the particular question involved.”

In order to present a question under this section of the code, the bill of exceptions must show that the particular question of law was decided by the court, during the progress of the cause, that an exception was reserved, and that the party

exShort v. Stutsman et al.

notified the court that he intended to take the question of law to the Supreme Court upon the bill of exceptions only. If the particular question of law was not decided by the lower court, it is manifest that this court has no power to decide the question. This court can only review such questions as have been decided by the lower court, whether they are presented under section 347 of the code or by an appeal in any other mode.

Again, if the question is decided during the progress of the cause, an exception must be reserved to the decision, in order to save the question. This rule is familiar, and is as applicable to a question reserved under section 347 of the code as to a question presented in any other way.

Applying these rules to these particular questions, it is manifest, we think, that they present no question for decision. The record does not show that the court decided either one of them, nor does it show that either of them arose in such a way that it could have decided them. The forms of the questions indicate that the court was not expected to decide them, but they were to be submitted to this court for decision in the first instance. This can not be done. Nor can a party formulate a question which he supposes arises upon the facts under the issues and obtain a decision upon it in such way. The questions that may be reserved under this section are such as actually arise and are decided during the progress of the cause —such, for instance, as are made in admitting or excluding testimony, in giving or refusing instructions, etc., and not such as the party conceives to be involved in the issues, or to arise on the facts proved.

Neither of these questions arose upon demurrer to the pleadings, nor upon the admission of the testimony, nor in giving the instructions to the jury. It is true that exceptions were taken to the several instructions given, but these decisions were not reserved under said section and are not presented. Besides, if they had been reserved, they would have been un

Short v. Stutsman et al.

availing, for the reason that the instructions themselves are not in the record.

For these reasons, we think the record presents no question for decision, and that the judgment must be affirmed.

PER CURIAM.—It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the costs of appellant.

ON PETITION FOR A REHEARING.

ELLIOTT, C. J.-It is certainly true that this court can not be called upon to decide a question not decided by the trial court. It is equally true that the record must affirmatively show that the questions sought to be reserved under section 347 of the code of 1852 were decided by the court trying the cause. The statement of the party to the court, that he desires to reserve a question, is not sufficient. The record must show a decision upon the question, and must contain so much of the proceedings as will enable the appellate court to fully understand the nature of the question.

The statute does not contemplate the reservation of mere abstract questions. Real questions, such as actually arise during the progress of the trial, may be reserved, but not mere general questions, which are not presented in the progress of the cause.

A question upon an instruction may doubtless be reserved, but not by a general statement of the abstract question of law which counsel may suppose it to present. The question, in such a case, may be reserved by setting out the instruction, the exception to it, and so much of the pleadings and record as may be necessary to fully and accurately present, on appeal, the real question which was actually presented to and passed upon by the trial court.

Petition overruled.
Woods, J., did not participate in the decision of this cause.

Mugge et al. v. Helgemeier et al.

No. 8523.

811:20 136 696 136 699

81 120 154 171

MUGGE ET AL. v. HELGEMEIER ET AL.

SHERIFF's SALE.Pleading.— Husband and Wife.- Action to Quiet Title.-A

complaint by two, not shown to be husband and wife, to quiet their title to land against an alleged illegal and void sale made by a sheriff under an execution against one of them, presents no issue except the validity of the sale, and does not require a determination of the rights in the

land of one of them as the wife of the other. SAME.- Reply.- Departure.-In an action to set aside a sheriff's sale, a re

ply, which sets up different irregularities from those alleged in the com

plaint, is a departure. SAME. - Execution.- Appraisement.-Under an execution upon a judgment,

a part of which is directed to be collected without appraisement, a sale

without appraisement is proper. SAME.-- Real Estate Fraudulently Conveyed.--Real estate, which the debtor

has conveyed or caused to be conveyed with intent to defraud his creditors, may be sold without appraisement on an execution which does not waive appraisement, there having been an adjudication that the conveyance was fraudulent, although the adjudication contain n express

order for sale without appraisement. SAME.-Statute Construed.--Section 381, code of 1852 (R. S. 1881, section

576), does not apply to the sale on execution of real estate fraudulently

conveyed by the execution debtor. SAME.--Separate Parcels.-Sale in Solido.-When the real estate consists of

separate parcels, and the rents and profits and the fee simple of the parcels, singly and in combinations of two, three, etc., have been properly offered and no bids received, the parcels may be all offered and

sold together. SAME.— Inadequacy of Price.-Supreme Court. When the offer has been

properly made to sell in parcels and in combinations of parcels, and then they are all sold together, this court will not, on account of alleged inadequacy of price, review the finding and judgment of the lower court

upholding the sale of real estate by a sheriff. PRACTICE.- Erception to Judgment.-A general exception to a judgment does

not bring in question the correctness of a particular part of the judge ment.

From the Marion Superior Court.
T. E. Johnson, for appellants.
W. N. Harding and A. R. Hovey, for appellees.
Woods, J.—Complaint in two paragraphs by the appel-

Mugge et al. v. Helgemeier et al.

lants against the appellees, the first being to quiet the title of the appellants to real estate described, in which it is alleged the appellees claim an interest by virtue of a sheriff's sale, which is declared to be void ; the second being to set aside the sheriff's sale on account of certain irregularities and defects, which are specified.

The appellees defended under the sale, setting forth the facts in detail, and claiming that the sale was in all respects regular and valid.

The appellants replied in denial, and by a special paragraph, wherein it is alleged that the price bid at the sale, excepting the amount of the costs, was not paid to the sheriff, nor credited on the execution.

The court found for the defendants, and gave judgment accordingly, with a proviso that the judgment should not affect whatever right the appellant Emma, as the wife of her coappellant, had, or might show herself to have, in the undivided third of the property.

There was a general exception taken by the appellants to the judgment, but no objection made especially to the proviso, nor motion to strike it out or modify it.

The error assigned at the general term was the overruling of the motion for a new trial. That ruling is therefore the only one which comes before us for review.

Counsel for the appellant urges strenuously that the court had no right to put the proviso named above in its judgment, but should have determined and adjudged what the rights of Mrs. Mugge were, and quieted her title accordingly, as, that was “one of the objects of the suit.”

It is manifest, however, if the question were presented, that the complaint was not framed with that design, and is not such as to warrant such a decree. It does not appear in either paragraph that the plaintiffs are husband and wife.

A joint ownership is alleged, and that their title is clouded by an irregular and void sheriff's sale, made by virtue of an execution against one of them. The only issue tendered,

« ΠροηγούμενηΣυνέχεια »