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Toler et al. v. Keiher.
errors, none of which are available except the fifth. The first and second are expressly waived in the appellants' brief. The third is an irregularity occurring upon the trial, and, therefore, belongs to the motion for a new trial. The fourth, sixth, seventh, eighth and ninth are regarded as waived, because they are not discussed in the appellants' brief. The fifth is error of the court in overruling the motion for a new trial. The reasons for a new trial are:
1. Irregularity in the proceedings of the court by which the defendants were prevented from having a fair trial, in this: the court proceeded of its own motion to give written instructions to the jury, after having been requested in writing by the defendants to have the jury give a special verdict, and because the court, of its own motion, instructed the jury to find a general verdict in addition to their special verdict.
2. Because the damages assessed againt the defendants are too large.
3. Because the verdict is not sustained by sufficient evidence.
4. That the court erred in giving to the jury, of its own motion, each and all of the instructions from one to eight, inclusive, because a special verdict had been asked for by the defendants.
5. That the court erred in overruling the motion of the defendants, in accepting the general verdict of the jury.
6. The court erred in receiving the special and general verdicts of the jury and discharging them.
The verdict is sustained by sufficient evidence, and the damages are not too large.
The bill of exceptions shows an exception to each of the instructions, and proceeds as follows: “And thereupon the jury, having retired, returned into open court with a special and a general verdict, and the same, having been examined by the court, was by the court refused, and thereupon the court read to the jury as follows: 'If upon the above facts, the
Toler et al. v. Keiher.
court shall be of opinion that the law is with the plaintiff, we find for the plaintiff and assess his damages at and if the law is with the defendant, we find for the defendant.' The words and phrases aforesaid, so read to the jury by the court, not being set forth in the original special verdict returned by the jury, nor any other words and phrases of the same import and meaning, and the defendant objected to the court reading the same to the jury, at the time and before the same were so read, but the court overruled the objection and the defendants at the time excepted; and thereupon the jury, having again retired, return into open court their general and special verdict, to the receiving of which the defendants at the time objected, because a general and special verdict could not be returned by a jury, when the parties had requested a special verdict, wherefore defendant objected to the court receiving either or both of said verdicts, which objection was by the court overruled, and to which ruling the defendant excepted at the time. And the court thereupon received both said general and special verdicts; and, on plaintiff's motion, the judgment of the court heretofore set out in the record was rendered on the special verdict of the jury, to the rendering of which the defendants at the time excepted.”
A demand for a special verdict does not relieve the court of the duty of instructing the jury as to the nature of the action and the issues, and as to the form of their special verdict and their general duty in relation thereto; but as the special verdict is to state facts only, leaving the law to the court, a demand therefor makes it unnecessary, and therefore improper, to give the jury instructions as to the law of the case. Therefore, so much of the third instruction as undertakes to tell the jury what is a sufficient tender, need not have been given, but all the other instructions were entirely appropriate, and fairly informed the jury of the nature of their duties, escept so much of the seventh and eighth instructions as required the jury, together with their special verdict, to find also
Toler et al. v. Keiher.
a general verdict, and directed them as to the requisites and form of such general verdict.
It was undoubtedly error, after a special verdict had been demanded and ordered, to instruct the jury to return also a general verdict. Bird v. Lanius, 7 Ind. 615; Noble v. Enos, 19 Ind. 72.
There was no error in the action of the court on the return by the jury of the special verdict without its formal conclusion; the court did right in sending the jury back, with instructions to add to the special verdict its proper formal conclusion, and when the special verdict was returned corrected, but improperly accompanied by a general verdict, the court did right in declining to act upon the general verdict, and in rendering judgment upon the special verdict. The errors hereinbefore pointed out will not warrant the reversal of the judgment. The record of the whole case shows that the judgment was right on the merits, and in such cases a judgment will not be reversed for harmless intermediate errors. Whitworth v. Ballard, 56 Ind. 279; Pennington v. Nave, 15 Ind. 323; Van Pelt v. Corwine, 6 Ind. 363. A verdict in accordance with the weight of evidence, and with justice, will not be disturbed on account of erroneous instructions to the jury. Roberts v. Nodwift, 8 Ind. 339; The City of Logansport v. Dunn, 8 Ind. 378. “No judgment shall be stayed or reversed, in whole or in part, * * where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.” 2 R. S. 1876, p. 246, section 580. Thompson v. Wilson, 40 Ind. 192.
The judgment of the court below ought to be affirmed.
PER CURIAM.--It is therefore ordered, on the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellants.
Ferrier v. Deutchman.
81 390 139 197
81 390 141 450
FERRIER v. DEUTCHMAN.
SHERIFF'S SALE.- Appraisers.-Sale in Solido.— Return on Erecution.-Eri
dence. — Real Estate, Action to Recover.- Presumption.—A sheriff's return to an execution, showing the sale of real estate, subject to appraisement, is not materially defective for a failure to show how the appraisers were selected; nor for a failure to show that separate parcels of land sold in solido were first offered separately. Where the return is silent as to such matters the presumption will be indulged, prima facie, that the sheriff did his duty concerning them. Such return is admissible in evidence in
ejectment to prove title in the purchaser. SAME.-Sheriff's Deed. --A sheriff's certificate of sale of real estate is not
ordinarily material evidence in support of the purchaser's title, but the deed is admissible if it rests on a valid return.
From the Clark Circuit Court.
NIBLACK, J.-Action by William T. Ferrier against Martin Deutchman to recover the possession of lot No. 17, and a part of lot No. 57, in the town of Charlestown, in Clark county. Answer in general denial; trial by the court; finding for the defendant; motion for a new trial overruled, and judgment on the finding.
This is the second appeal in this cause, to this court, both of the judgments appealed from being in favor of the defendant below. Ferrier v. Deutchman, 51 Ind. 21.
At the last as well as at the first trial, the plaintiff relied upon a sheriff's sale to establish title to the lots in suit, and again introduced and had read in evidence four several judgments rendered in the court of common pleas of Clark county, against the defendant, three of said judgments being in favor of the State of Indiana, and the remaining one being in favor of the town of Charlestown, above named.
The plaintiff also offered and had read in evidence three executions, severally issued on the three judgments in favor of the State, and a fee bill issued on the judgment in favor
Ferrier v. Deutchman.
of the town of Charlestown for costs, amounting to the sum of $30.95. The plaintiff
' then offered in evidence the return of the sheriff of Clark county to the fee bill, issued as above, showing a levy upon the lots in controversy and a sale of them to him, but the court refused to permit the return to be read in evidence.
The plaintiff also offered in evidence a certificate of the sale of the lots executed to him by the sheriff; also a deed from the sheriff, both purporting to be based upon the sheriff's return, but they were severally excluded.
The return stated that by virtue of the fee bill, and of the three executions issued, as herein above set forth, he, on the 20th day of February, 1872, levied upon the lots described in the complaint, and that on the 23d day of March, 1872, after having given due notice of the time and place in the various modes prescribed by law, and after having said lots appraised according to law, he first offered at public auction the rents and profits of said lots for a term of years not exceeding seven, and receiving no bid whatever for such rents and profits, he then, in like manner, “ proceeded to offer the fee simple of” said lots, "and William T. Ferrier bid therefor the sum of twenty dollars,” and he being the highest and best bidder, and that being the highest and best price bid for the same, said lots were struck off and sold to him; that the said Ferrier had paid the amount so bid by him, and had received a certificate of his purchase of the lots.
A schedule and appraisement of the lots accompanied the return, purporting to be made under oath by two disinterested householders of the neighborhood, in which the value of lot 17 was fixed at $100, and the part of lot 57 at $1,000; but in which it was also stated that said lots were subject to certain incumbrances, and that the interest of Deutchman in said lots, over and above the incumbrances, was of no value.
Neither the return nor the schedule stated the manner in which the appraisers were selected. The appellant complains that the court erred in refusing to