Smith v. Arsenal Bank

Mr. Justice Paxson delivered the opinion of the court, January 7th 1881. [521] The first assignment of error cannot be sustained, for the reason that the offer of evidence was too broad. While the arrangement with the bank and the circumstances under which the judgment was given were well enough, the subsequent portion of the offer, by which it was proposed to show that the bank permitted Sunderman’s property to be sold for a price greatly below its value, was clearly inadmissible. It was no defence. The learned judge below might have separated the wheat' from the chaff, but he did not do so, and, under all the authorities, he was not bound to do so. Nor is there any merit in the second assignment. It was entirely competent to show what the judgment was given for. The third, and fourth assignments were evidently intended to raise the important question in the cause, viz : whether the money received from the sheriff should be applied pro rata on the three notes which the judgment was given to secure, or whether the bank should be allowed to apply it all to the unsecured notes held by it. The point is an interesting one, but it is not raised. Upon the trial below, the defendant asked the court to instruct the jury “that upon all the evidence in the case the defendant is entitled to a credit upon the claim in suit for a proportionate share of the money, made and appropriated to the judgment of the bank against Sunderman No. 85, March Term 1879, as appears by the special return of the sheriff, made at No. 179, October Term 1879 (ft. fa.) given in evidence in this case, the amount so made being $780.39.” This point assumed all the facts, and the learned judge was not bound to answer it. He refused it, however, and reserved it. Subsequently he entered judgment on the verdict-.in favor of the plaintiff. As before stated, the point was bad because it assumed the facts and withdrew the case from the jury, and it did not help it that the court reserved it. A reservation of a point upon all the evidence is bad. A reserved point must be based upon facts admitted in the cause or found by the jury. We have said this so often that a reference to the cases is unnecessary. Nor can we assume that the facts were undisputed. The plaintiff in error has not printed a word of the evidence. It is true the defendant has printed some of it, how much we do not know, but we will not patch out the plaintiff’s case in that way. Besides, the history of the case and the counter statement differ about the facts in essential features. We have, therefore, the verdict of a jury in favor of the plaintiff below, with nothing upon the record which would justify us in disturbing it. Judgment affirmed.