Lehman v. Hawks

• Decision Date: 23 January 1890
• Citation: 121 Ind. 541,23 N.E. 670
• Parties: Lehman et al. v. Hawks et al.
• Court: Indiana Supreme Court

121 Ind. 541

23 N.E. 670

Lehman et al.

v.Hawks et al.

Supreme Court of Indiana.

Jan. 23, 1890.

Appeal from circuit court, Elkhart county; James D. Osborne, Judge.

A suit of foreclosure brought by Eleazer Hawks, Cephas Hawks, and Peachy C. Messick, against Lewis H. Lehman and Polly Lehman, his wife. Verdict and judgment for plaintiffs. Defendant Polly Lehman appeals.

Johnson & Herr, (H. C. Dodge, of counsel,) for appellant. Baker & Defrees, for appellees.

Olds, J.

The appellees brought suit against Lewis H. Lehman and the appellant, Polly Lehman, his wife, to foreclose a mortgage given by Lewis H. Lehman alone upon certain real estate, the title to which was in Lewis H., of record. Lewis H. answered in general denial. Appellant answered the complaint in denial, and filed a cross-complaint alleging that Lewis H. held the title to the real estate in trust for her, and that appellees had notice of said trust. Appellees answered the cross-complaint in denial. There was a trial, and a decree of foreclosure entered. Appellant obtained a new trial as of right on her cross-complaint; and the issues joined on the cross-complaint were submitted to a jury for trial, and trial had, resulting in a verdict and judgment for appellees.

The first error assigned of which appellant makes complaint is the giving of what is contended to be oral instructions to the jury. Appellant made a proper request that the instructions given by the court be reduced to writing, and all the instructions given to the jury before they retired for deliberation were in writing. The jury returned into court with a general verdict in favor of the defendants, who were mortgagees, naming them, together with the answers to interrogatories submitted. The appellant objected to the verdict being received and recorded as the verdict of the jury, and said answers to interrogatories being received, because said verdict did not decide between all the parties to the case; whereupon the court ordered said jury to retire to the jury-room and consider of their verdict. That before the jury retired to consider anew of their verdict the court orally stated to the jury “that it was their duty to find upon the issue between the plaintiff and Lewis H. Lehman; that they must determine, as between them, either for or against the said Polly Lehman.” To which action of the court, counsel for appellant at the time objected and excepted. Before the jury retired to deliberate, they were instructed in writing. The instructions are not in the record. The presumption is that the court instructed the jury upon all the issues in the case. The jury returned with an informal verdict, and the statement to the jury complained of is a mere direction to them to retire and bring in a verdict covering the issues in the case, either for or against the plaintiff in the cross-complaint. Directions given to the jury in regard to answering interrogatories are held not to be instructions such as are required to be in writing. Trentman v. Wiley, 85 Ind. 33. In McCallister v. Mount, 73 Ind. 559, the court says: “A direction to retire with their bailiff, to separate for their meals, to seal up their verdict, to abstain from talking among themselves or with others, to sign their general verdict, or to answer interrogatories, are not instructions, within the meaning of the law.” In the case of Lawler v. McPheeters, Id. 577, it is said: “Instructions proper are directions in reference to the law of the case.” In the case of Stanley v. Sutherland, 54 Ind. 339, the court was requested to instruct the jury in writing before any evidence was introduced. The defendant introduced certain evidence, to which the plaintiff objected, and the court said to the jury: “Gentlemen of the jury, I instruct you that this evidence will have no bearing on the case unless the plaintiff is connected with it some way, or the facts brought to the knowledge of the plaintiff;” and it was held that such statement to the jury did not constitute an instruction, within the meaning of the statute requiring instructions to be given in writing. Bouvier, in defining the word “charge,” says: “Charging a jury is stating the precise principles of law applicable to the case immediately in question.” Bouv. Law Dict; Dodd v. Moore, 91 Ind. 522, and authorities there cited. Literally, the word “instruction” may apply to any direction give to a jury by the court; but, as used in the statute making it incumbent on the court to reduce the instructions to writing, it relates to the law of the case, and may properly be said to mean an exposition of the principles of the law applicable to the case, or some branch or phase of the case which the jury are bound to apply in order to render a verdict establishing the rights of the parties in accordance with the facts proven. The statement to the jury complained of in this case is not an exposition of any principle of law which the jury are required to apply to any facts in the case. The jury were not directed to find a verdict for one party or the other. There was no statement of any principle of law which they were to apply. It was a statement of a fact to them which is within the knowledge of every person,-that they must find a verdict for one party or the...