Berghoff v. McDonald , 87 Ind. 549 ( 1882 )

Franklin, C.

This action was commenced by appellee against appellant in the Whitley Circuit Court, to recover two colts, where appellant filed a plea in abatement. Appellee, after demurring to that plea, was allowed by the court to amend his complaint, making new parties defendants Adam T. Mc-Ginley and Jacob Ruch. Appellant then filed a general denial and a special plea, and a change of venue was then taken by appellant to Kosciusko county. Issues were there formed by McGinley and Nueh, and by appellee’s filing a general denial to the special paragraph of Berghoff’s answer.

The record afterwards shows that appellee’s demurrer to ■appellant’s first plea in abatement was sustained, and an exception reserved. A trial was had by jury, a general verdict was returned for appellee, with answers to interrogatories. Each of the defendants moved for judgment in his favor upon the answers to the interrogatories. The motions of McGinley ■and Ruch were sustained, and that of Berghoff overruled. Appellant then moved for a new trial, a venire de novo, and in arrest of judgment, all of which were overruled, exceptions ■reserved and judgment rendered for the defendants McGinley ■and Ruch, and for the plaintiff against Berghoff, who has appealed to this court.

Appellee has filed a motion to dismiss the appeal, for the reason that McGinley and Ruch are not made parties in the .assignment of errors. They have filed an appearance, waived ■notice, and, if they are deemed proper parties, consent that ■the cause may be submitted, heard and determined. The judgment was in their favor, and only against appellant. They have no interest in the judgment appealed from, and are neither necessary nor proper parties in this court. Easter v. Severin, 78 Ind. 540; Hammon v. Sexton, 69 Ind. 37. The motion .to dismiss the appeal is overruled. The errors assigned are:

1st. Sustaining the demürrer to the first plea in abatement.

2d. Overruling motion to strike out and quash affidavit and writ of replevin.

3d. Overruling motion for judgment on special findings.

4th. Overruling motion for a judgment on special findings .for the sorrel colt.

5th. Overruling motion for a venire de novo.

6th. Overruling motion for a new trial.

7th. Overruling motion in arrest of judgment.

8th. Sustaining appellee’s motion for judgment on the general verdict. ^

As to the first error assigned: The amendment of the complaint by making new parties defendants, and the filing of the special answer by appellant, setting up the same facts that ■were alleged in his former plea of abatement, and charging that the new parties resident were fraudulently made defendants in order to give the court jurisdiction of the cause, took the original complaint and plea in abatement out of the case,, and they form no necessary part of the record, and should not have been embraced therein. Therefore, we do not consider whether the ruling upon the demurrer was right or' wrong. It answered no purpose in the trial of the cause.

As to the second error assigned : The record shows that the-motion was made on the part of the other defendants, McGinley and Ruch, and not on the part of appellant. He has no-interest in the rulings thereon, and can not be heard to assign the same as error; and this assigned error is not discussed by appellant in his brief, and is, therefore, waived.

As to the third error assigned: The defendants requested the court to submit to the jury forty-eight interrogatories. Answers were returned to thirty-eight of these, and to ten there were no answers. The record does not show how many or which ones of them were submitted by the court to the-jury, or why the others were not answered.

Appellant’s counsel first base their motion for judgment on these answers, upon the answer to the sixth interrogatory. That interrogatory and answer read as follows:

“6th. Did not Berghoff, before the summons issued against' him in this cause was put in the hands of the sheriff, transfer the horses to the liveryman to take to Fort Wayne? Answer. Yes.”

This answer, literally construed, would moan that the horses were not so transferred. But that is not the meaning intended by the jury or designed by the interrogators. The questions and answers are nearly all in the same form. But, giving the answer the meaning that the horses were so transferred to be taken to Fort Wayne, the answer is still not inconsistent with the general verdict for the plaintiff. The liveryman could only be regarded as the agent of Berghoff for the purpose of transferring the property, and the possession of the agent would be but the possession of the principal.

Appellant’s counsel further insist that, according to the answers to interrogatories 1, 2, 8, 9 and 11, appellant was then, and had been for the three years last past, a resident of Fort Wayne, Allen county, Indiana, and that the court had no jurisdiction to render judgment against him, however this might have been, had there been no other defendants in the case; but there were other resident defendants, and there was an issue made as to whether they had been fraudulently made defendants for the purpose of giving the court jurisdiction. The following arc the interrogatories and answers upon this issue:

“ 14th. Did not the plaintiff know, before he made the defendants MoGinley and Ruch parties, that the horses had been taken to Fort Wayne, and that neither one of them had anything more to do with them or any control over them ? Ans. No.”

(The 15th is not answered.)

"16th. Was not the defendants McG-inley and Ruch made parties defendants by the plaintiff for the wrongful and fraudulent purpose of trying to give the court of Whitley county jurisdiction of the cause? Answer. No.”

The facts of this issue having been thus found by the jury, the fact that appellant was a non-resident of Whitley county is not inconsistent with the general verdict for the plaintiff. They further insist that the facts found by the jury show that the mortgage under which McDonald claims the property was absolutely void. We extract from appellant’s brief his claim under this head:

“The jury find on pages 46 to 50 (of record), in answer to interrogatories, as follows: ( No. 22) That McDonald held under a chattel mortgage, executed by Jacob Steinfield, February 27th, 1878, to secure (No. 23) a note due in six months, with a condition (No. 24) that Steinfield should retain the possession of the property till the note became due, and if the note was not paid promptly at maturity, that McDonald should have the right to take and keep possession of the property without any process of law, and that it should then become the absolute property of McDonald; (No. 25) that the property was in the possession of Steinfield at the time the mortgage was executed; (No. 26) that he kept that in suit tillTrentman levied upon it; (No. 29) that McDonald could have taken possession of it any day till that time; ( No. 51) that the only reason he did not was ‘ through humane motives, with the assurance that he should lose nothing by the act;’ (No. 32) that Steinfield has sold part of the property with the consent and concurrence of McDonald; (No. 41) that Stein-field has not paid any of his numerous debts; (No. 42) that the mortgage has kept Steinfield’s creditors from taking it; (No. 43) that it was understood that Steinfield should keep ■and use the property as his own; (No. 46) that Steinfield might exchange part of the property for other property, and that McDonald’s mortgage should be a lien on the property acquired.” The question fixes this last answer to an agreement made after the execution of the mortgage, and applies to the sorrel colt hereafter spoken of.

It is insisted that these answers make the mortgage void, and that appellant is entitled to judgment thereon in his favor, and a number of common-law authorities and some early cases in this court are referred to as authority in support thereof; but the more recent decisions of this court, based upon the statute of frauds and perjuries (1 R. S. 1876, p. 508, ■sec. 21), hold that the question of fraudulent intent is a question of fact, and that a mortgage formerly held void at common law on account of certain stipulations contained in it, will not now bo held void, unless it is proven that fraud actually existed, and that is a question for the jury to determine. McLaughlin v. Ward, 77 Ind. 383; Lockwood v. Harding, 79 Ind. 129; Morris v. Stern, 80 Ind. 227; McFadden v. Hopkins, 81 Ind. 459.

The forty-fourth question and answer read as follows:

“ 44th. Was it not understood between McDonald and Stein-field that the property should bo kept away from Steinfield’s creditoi’S for some time ? Ans. No.”

Taking this answer and the general verdict together, we Brink the jury determined that fraud did not actually exist, and that the answers or special findings are not irreconcilable with the general verdict. There was no error in overruling the motion for judgment for appellant upon the answers to the interrogatories, notwithstanding the general verdict.

The fourth error complained of is also stated as a reason for a new trial. No answer to the interrogatories is pointed ■out in appellant's brief as a basis for the motion for judgment in favor of appellant, on the special findings, for the sorrel ■colt. Wo see none that would sustain the motion, and do not here further consider the question.

The fifth error assigned is the overruling of the motion for •a venire de novo. The general verdict returned by the jury reads as follows: “We, the jury, find for the plaintiff as against .all the defendants; that he was, upon the 29th day of October, 1879, the owner of and entitled to the possession of the property described in his complaint, and now in controversy, is •still the owner thereof and entitled to the possession thereof; •and that, upon said date, the defendants unlawfully detained the possession of the same from the plaintiff. We. do further find that said property was of the value of $90 at that date, to wit, October 29th, 1879. Samuel Caufeman, Foreman.''

We see no irregularity, ambiguity or uncertainty in this verdict that would prevent the court from rendering the proper judgment upon it, or that would require a venire de novo. There was no error "in overruling this motion.

The sixth error assigned is the overruling of the motion for a new trial. There are nine reasons stated for a new trial. We only consider those that are presented and discussed by •appellant in his brief. The first reason so presented is that there was no evidence to sustain the verdict as to the sorrel •colt — it being the fourth stated in the motion. The evidence shows that at the date of the mortgage the sorrel colt belonged to William W^Hj the son-in-law of Steinfield, the mortgagor, but was then in the possession of Steinfield. It was included in the mortgage as Steinfield’s property, and McDonald then did not know but it was Steinfield’s property, supposed it was. Afterwards Wolf wanted the colt released from the-mortgage, or some other horse in its place, and, by agreement, of McDonald, Steinfield and Wolf, Steinfield exchanged with Wolf a mare that was also in the mortgage, for the colt, and McDonald released the mare exchanged to Wolf from the-mortgage. Steinfield testified that he put Wolf’s colt in the-mortgage because Wolf wanted it in. This makes the mortgage upon the colt good as against both Wolf and Steinfield, and McDonald’s release of the mare does not affect his lien upon the colt. The evidence supports the verdict as to the/ colt.

The sixth reason insisted upon is error in striking out and refusing to require the jury to answer certain interrogatories.

The record does not show that the court struck out any of the interrogatories. It does not show that any objections were made in the court below to any of the answers to the interrogatories, or that the court was requested to require the jury to make any other or more full answers to the interrogatories.. None of these questions having been raised i-n the court below, they can not for the first time be considered in this court..

The seventh, eighth and ninth reasons are for giving instructions of the court’s own motion, for giving instructions asked by the -plaintiff, and for refusing to give instructions asked by the defendants. The embracing in the transcript by the clerk of what purported to be the instructions given does not make them a part of the record; they are not embraced in a bill of exceptions; there is no order of the court making any of them a part of the record; the instructions purporting to be given by the court of its own motion are not signed by the judge; the instructions asked for bv the plaintiff, and purporting to be given by the court, are not signed by plaintiff’s counsel or the judge. The instructions asked for by defendants’ counsel are signed by defendants’ counsel and noted “ refused and excepted to.”

The instructions said to be given by the court of its own motion, and the ones said to be asked for by the ¡plaintiff and given by the court, are not properly in the record, and can not be considered. Busk. Prac. 105; Smith v. Ratliff, 74 Ind. 426.

In the ease of Jeffersonville, etc., R. R. Co. v. Cox, 37 Ind. 325, it was held that under the 325th section of the code ■of 1852, when instructions asked and refused by the court were signed by the counsel asking them, and noted “ refused and excepted to,” that made them a part of the record, without their being signed or endorsed by the judge, embraced in a bill of exceptions or ordered by the court to be made a part of the record.

Under the aforesaid statute and decision of this court, the instructions asked by defendants’ counsel must be considered a part of the record. But as the instructions given are not a proper part of the record, the instructions asked can not be considered. “ For it might well be in such a case, and the record would show nothing to the contrary, that the court refused to give the instructions asked for because it had already given the substance thereof in its own language. The court’s reasons for its refusal to give the instructions asked by the appellant are not stated or apparent, but the record docs not exclude the legal presumption that they were refused for sufficient reasons.” Smith v. Kyler, 74 Ind. 575,. 585. Bowen v. Pollard, 71 Ind. 177; Stott v. Smith , 70 Ind. 298; Myers v. Murphy, 60 Ind. 282.

The other errors assigned have not been referred to by appellant in his brief, and are considered waived. We find no available error in this record.

The judgment below ought to be affirmed.

Per Curiam.

It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things affirmed, with costs.