Woodruff v. Hoard

• Decision Date: 02 June 1857
• Citation: 9 Ind. 178
• Parties: Woodruff v. Hoard and Another
• Court: Indiana Supreme Court

9 Ind. 178

Woodruff v. Hoard and Another

Supreme Court of Indiana

June 2, 1857

From the La Grange Court of Common Pleas.

The judgment is affirmed with costs.

James M. Flagg, for appellant ^[1].

Andrew Ellison, for appellees.

OPINION

Perkins J.

Suit upon a note. Pleas of payment, set-off, etc. Issues. Trial. Judgment for the defendants.

The errors assigned are, that the Court erred in sustaining the demurrer to the plaintiff's reply; that the Court erred in giving and refusing instructions, and in overruling the motion for a new trial.

1. The overruling of the demurrer was not excepted to.

2. The record does not contain all the evidence. It states that evidence was given tending to prove such and such facts, but it does not set out the evidence. Hence, we cannot tell whether the evidence proved the facts or not, nor whether the Court below should have granted a new trial. The bill of exceptions, it is true, closes thus: "which was all the evidence in the cause;" but as the bill does not contain the evidence, as its whole tenor shows, the closing assertion cannot be regarded as true. To say that evidence was given tending to prove the plaintiff's case, which was all the evidence in the cause, is only to say that the only evidence given was that which tended to prove the plaintiff's case; but whether it was sufficient for the purpose, we could not, on such statement, judge.

3. The instructions given and refused, present all the questions raised by the motion for a new trial. They read thus:

"In relation to the two yoke of oxen charged in the defendant's set-off, the jury will determine from the evidence when and in what manner the oxen came to the plaintiff's possession. If the oxen were levied upon by a constable, by virtue of an execution in favor of Woodruff against Hoard, the principal defendant in this suit, it will be important to determine whether Hoard, on being required by the constable, did designate the oxen to be levied on by virtue of such execution or not; because, if the judgment was rendered and execution levied at any time while the R. S. of 1843 were in force, and the oxen were designated by Hoard to be levied on by the constable, then they might be sold at any sum not less than two-thirds of their appraised value whereas, if the oxen were not so designated by Hoard, but were designated by Woodruff, or taken by the constable without being designated by either party, then the constable had no authority by law to sell the oxen for less than their fair value, as ascertained by appraisers, and any sale for a less sum would be without authority of law, and void. If the plaintiff, Woodruff, was the plaintiff in the execution upon which the oxen were sold by the constable, he was bound to know that all the proceedings of the officer up to the sale were legal; and if the sale was a void one, and the plaintiff took the oxen, and converted them to his own use, he would be liable to pay Hoard for the oxen; and, to recover the value of the oxen. Hoard may...