Barnes v. Pitts Agricultural Works

SULLIVAN, C. J. (After Stating the Facts.) — The first error assigned is that the court erred in sustaining the defendant’s objection to plaintiff’s counsel reading section 3361 of the Eevised Statutes to the jury, as reference was made thereto in the complaint. It appears that plaintiff’s counsel, in making his opening statement to the jury, undertook to read said section of the statute to the jury, and objection was made thereto by defendant’s counsel, and the objection was sustained. As plaintiff’s action was brought under the provisions of said section, and said section referred to in the complaint, we think it was error to refuse to permit counsel to read the same to the jury. But the error was harmless, as the case made by plaintiff’s complaint was afterward dismissed and the jury discharged. A judgment will not be reversed for harmless error. This court recognizes the general rule that the jury gets the law from the court. But where, as in this case, the action is brought under a section of the statute which is referred to in the complaint, counsel may read to the jury, so as to give them an intelligent understanding of the section of the statute. The dismissal of plaintiff’s original action is assigned as error. Under the provisions of section 3364 of the Eevised Statutes no cause of action accrues until a mortgage debt has been fully paid, and demand for discharge thereof made, and, as plaintiff’s answer to defendant’s cross-complaint clearly shows that said debt had not been paid at the date the suit was brought, the motion to dismiss the plaintiff’s action was properly sustained. It is contended that the court proceeded with the trial after plaintiff had perfected his appeal from the order and judgment •of the court dismissing his complaint. There is nothing in the record to sustain this assignment of error. No appeal had been perfected until nineteen days after the trial of said cause. Why counsel for appellant should make this contention, under the facts shown in the record, is beyond our conception, as no appeal had been taken, as claimed in said motion. Sustaining defendant’s demurrer to plaintiff’s cross-complaint is assigned as error. The plaintiff brought his action to compel the discharge of a mortgage that he alleged had been fully paid, and for the penalty and damages provided for by see [264] tion 3364 of the Revised Statutes. The defendant answered by denying the payment of said mortgage debt in full, and by ■cross-complaint prayed for the foreclosure of its mortgage for the balance due on said promissory notes. The plaintiff answered the cross-complaint by denying that there was anything due to the mortgage, and averring that it had been paid in full; and, as a separate defense, admits that said mortgage debt had not been paid in full, and sets up a counterclaim, on which he avers there is due him about $700, and that he applies said sum in payment of said balance due on the mortgage debt. By his answer he admits that he has no cause of action on his complaint, and the court did not err in dismissing it. The demurrer to the answer was then sustained, and the plaintiff thereupon filed an amended answer, setting up substantially the same defense as contained in the answer, to which no demurrer was interposed. He thereafter withdrew from any further participation in the trial of the case. »We conclude, after a very careful examination of the record, that, if the court erred in sustaining said demurrer, the error was harmless, for the reason that, under the amended answer, the defendant was permitted to make the same defense as under the answer which was stricken out on demurrer. For that reason no prejudicial error was made against him. The judgment of the lower court is affirmed, and costs of this appeal are awarded to the respondent. (December 10, 1898’.) Huston and Quarles, JJ., concur.