Chosen Friends Home Loan & Savings League v. Otterson

Corn, Justice. This was an action brought to foreclose a mortgage. The defendants, Herman and Mary Otterson, set up by way of defense that the execution of the mortgage was procured by fraud, and that the mortgaged property was the homestead of the defendants Otterson; that the defendant Mary Otterson, who was the wife of Herman Otterson, did not have explained to her the nature and effect of the instrument, or her right of homestead, and that, not*being able to read or understand English, she [92] had no knowledge of her rights in the premises, and did not understand the nature or effect of the instrument she was signing. The court impaneled a jury to try the case, to which proceeding the plaintiff objected. The jury found for the defendants, except as to the indebtedness of Herman Otterson, and answered certain interrogatories submitted to it by the court favorably to the defendants. The plaintiff in error sets out certain evidence in its bill of exceptions, but there is no certificate of the court or judge that it is the evidence, or any part of the evidence, in the case. The plaintiff assigns as error, first, the submission of the case to the jury, upon the ground that it is an equitable action and triable by the court. The right of the court in suits in equity to direct any issue to be tried by a jury is specially preserved by our statutes. (R. S., Sec. 2518.) The court seems simply to have exercised that right, and as no objection was made to any of the members of the jury as in any way disqualified or unfit to perform the service, it does not appear how the plaintiff was, or could have been, prejudiced. It is further assigned as error that the court submitted to the jury certain interrogatories, and directed the jury to find specially as. to the matters submitted. The reasons given whereby counsel for plaintiff in error has arrived at the conclusion that this was erroneous, are that the verdict would only be advisory and not binding upon the court, and that some of the questions submitted were matters of law and not of fact. Counsel seems to argue that the right of trial by the court is a constitutional, or at least a legal right, similar to the right of trial by jury in certain cases, and that this in some way precludes the court from calling a jury to its assistance. In point of fact, he has what he is entitled to : the judgment of the court; and, moreover, out of abundant tenderness for the rights of the parties, the court, as it might lawfully do, availed itself of the assistance and advice of a jury upon certain questions in the [93] case before rendering its judgment. In this the plaintiff was denied no right ; and in such cases it is eminently proper that specific questions should be submitted to the jury, and their answers to them required, in the nature of •a special verdict. Counsel does not specify which of the questions, in his opinion, submit matters of law and not of fact. But we hav.e examined them all with care. They are whether the property in question was occupied by Mary Otterson and her family as a homestead at the time of the execution of the mortgage ; whether she executed the mortgage with her husband ; whether she was examined separate and apart from her husband by the officer taking the acknowledgment, and by him apprised of her rights and of the effect of executing the instrument; whether Herman Otterson was induced to sign by 'fraudulent representations; the amount of money obtained by him from plaintiff upon executing the mortgage, and the amount of credit he was entitled to by payments upon the mortgage debt. These seem to be very clearly matters of fact. So that, even if the submission of a legal proposition to a jury would necessarily be reversible error, the plaintiff in error has nothing to complain of in that regard. The court instructed the jury that “ if they believe from the evidence that Mary Otterson the defendant, was not informed of her homestead rights by the officer taking her acknowledgment to the mortgage in question separate and apart from her husband in a language which she understood, and the effect of signing and acknowledging such instrument, explained to her by the said officer, they must find for the said Mary Otterson, defendant, upon the issues joined.” This instruction is objected to upon the ground ‘1 that it is upon a question of law for the court, and not a question of fact for the jury in any case.” As the instructions are supposed to embody the law of-the case and are given to inform the jury what the law in the. premises is, the force of the objection is not quite apparent. But this recites correctly the requirements of [94] our statute without which the conveyance of a homestead is declared to be absolutely void. It correctly states a proposition of law applicable to the case as made by the pleadings, and the evidence not being preserved we must presume that it was based upon evidence, and that the facts of the case were such as to render parol evidence admissible to impeach the certificate of the notary taking the acknowledgment. In the absence of the evidence and the entire charge of the court by which to test it there is nothing tending to show that it was in any way prejudicial to the plaintiff. The plaintiff in error, apparently in good faith, assigns as error irregularities upon the part of the defendants ‘ ‘ in refusing to pay stenographer’s fees for taking of evidence in this case, by reason of which the evidence was not taken, and thereby plaintiff was precluded from having a fair trial.” Under our statutes an official stenographer is appointed for each county, and his compensation is fixed by law at eight dollars per day while he is employed by the court. In criminal cases he is paid by the county. ‘ ‘ In all other cases when he is employed, his pay shall be taxed as costs in the case.” As a matter of convenience, when the stenographer is employed, the parties to an action frequently, and perhaps generally, advance the amount to be paid for his services in equal proportions. But there is no requirement of law that any party to a civil action shall employ, or assist in employing, a stenographer to take the case. It is sufficiently plain that the refusal of the defendants to employ a stenographer in this case can not be complained of by the plaintiffs. As the evidence is not before us, we can not consider the assignments of error which involve a consideration of the evidence. Affirmed. Conaway, C. J. and Pottek J., concur.