Broadstreet v. McKamey

• Citation: 83 N.E. 773,41 Ind.App. 272
• Decision Date: 19 February 1908
• Docket Number: 6,251
• Parties: BROADSTREET v. MCKAMEY
• Court: Court of Appeals of Indiana

83 N.E. 773

41 Ind.App. 272

BROADSTREET v. MCKAMEY

No. 6,251

Court of Appeals of Indiana

February 19, 1908

From Putnam Circuit Court; P. O. Colliver, Judge.

Action by Andrew V. McKamey against James A. Broadstreet and another. From a judgment against Broadstreet, he appeals.

Affirmed.

John H James, for appellant.

James P. Hughes and John P. Allee, for appellee.

OPINION

ROBY C. J.

Action on a promissory note by appellee against appellant, James A Broadstreet, surety, and William Broadstreet, principal. The appellant filed an answer of non est factum, and also a cross-complaint against the appellee and his codefendant, admitting the execution of the note and the signing of his name thereto by William Broadstreet, but averring that said William was without authority so to do, that he received no consideration, and that the signing of his name was a forgery. The issues were closed by general denials.

The cause was tried by a jury, which returned a verdict for appellee for "$ 200, with interest at six per cent from date and $ 10 attorneys' fees." After reading the verdict, the judge stated that it was not in proper form, and thereupon wrote a form of verdict, leaving blanks for the amount of ascertained damages, which was given to the jury. At the same time he prepared and read a new instruction as follows: "Gentlemen of the jury, I desire to withdraw the instruction heretofore given in this case in reference to the amount of recovery in this case, and give the following: In case you find for the plaintiff, it will be your duty to assess his damages in a total sum, including the principal of the note in suit with six per cent interest thereon from November 3, 1904, but you will allow nothing for attorneys' fees, as there is no proof as to the value thereof."

The corrected verdict was returned assessing appellee's damages at $ 215.70.

The six assignments of error present two questions: (1) Did the court err in resubmitting the case to the jury and in instructing it not to include attorneys' fees? (2) Was the verdict and judgment sustained by the evidence? The judge has authority at any time before the jury is discharged to withdraw erroneous instructions. Sage v Evansville, etc., R. Co. (1893), 134 Ind. 100, 107, 33 N.E. 771; Rush v. Pedigo (1878), 63 Ind. 479; Hynds v. Hays (1865), 25 Ind. 31, 33. Appellant argues that he would have been entitled to a new trial if such action had not been taken. He was saved the necessity of asking...