Mishoe v. Beaty

Hines, J.

(After stating the foregoing facts.)

The court charged the jury as follows: “I charge you that there is only one issue that I am going to submit to you in this ease, and that is the issue of whether or not W. Mishoe complied with his bid, or offered to comply with the terms of the same, or refused to comply with the terms of his bid after request. You look to the evidence for this,,and decide this case on that issue and that issue alone.” The errors assigned on this charge are: (1) that it was “contrary to the law, contrary to the principles of the law, and without any law to support the same,” and (2) that “it took away from the said plaintiffs all of their rights as set out and sworn to in their original and amended petition, and took away from the jury the real issues in the case.” In this instruction the court submitted to the jury the single issue whether or not W. Mishoe complied with his bid or offered to comply with the terms of the same, or refused to comply with his bid after request. Was this elimination of all other issues erroneous? Under the pleadings there were two issues in the case. One was the issue submitted to the jury for determination. The other issue was whether or not, after W. Mishoe had failed to comply with his bid, this land was again put up and exposed for sale by the sheriff late in the day and after the crowd had dispersed, and, as a 'result, the land was sold for much less than its value. The plaintiffs, in the amendment to their petition, specifically alleged these facts, and sought to have the sale set aside and the sheriff's deed canceled on this ground. In his note to the amendment to the motion for new trial the judge certified that he charged the jury as set out in the above instruction. This eliminated the vital issue in the case, upon which the plaintiffs, Mishoe & Warnock, who were the defendants in fi. fa., sought to recover. The fact that W. Mishoe,-another of the plaintiffs, sought to have the sale set aside on the ground that he was the highest and best bidder and had offered -to comply with his bid, which offer was refused, did not prevent the submission to the jury of the above vital issue, raised by the defendants in execution. They were the parties who were really damaged by this sale, if made late in .the day and after dispersal of the crowd, in consequence of which the land was bid off at a sum far below its real value. By proper and timely objection by the defendants the court might have compelled the plaintiffs to elect upon which issue they would proceed; but the court could not make such election, and in the absence of such timely objection all issues in the case raised by the pleadings should, have been submitted to the jury. It does not require citation of authorities to establish the principle that it was erroneous for the trial judge, by this instruction to the jury, to eliminate a vital issue in the case. We think the exception to the instruction which eliminated this issue is properly raised by the assignment of error on this instruction. The elimination by the court of the issue raised by the defendants in fi. fa. as to the validity of the sheriff’s sale requires the grant of a new trial.

The ruling in the second headnote does not require elaboration.

Judgment reversed,.

All the Justices concur, except Beck, P. J., dissenting.