Carmichael v. Vandebur

Rothrock, J. i. practice : ievISi4' I. It appears from the record that the verdict was returned on the 12th day of November, 1877. On the 14th day of the same month a motion for a new trial was filed, submitted and taken under advisement, and the cause continued until the next term. On the 25th day of December, and in vacation, the motion fora new trial was overruled, andón January 11, 1878, in vacation, a judgment was entered upon the verdict of the jury. The appeal' was taken in April, 1878. It is now assigned as error that the court erred in overruling the motion for a new trial, and in rendering judgment in vacation. It is sufficient to say, upon this assignment of error, that the entry of a judgment in vacation was irregular. We are not prepared to say that it is void. Under certain circumstances it may be so entered. Code, § 183. But a more conclusive answer to the argument of counsel for appellant is that the rule is inflexible that a judgment cannot be reversed for an error of the court below unless the question involved has been in some way presented to the court, and a ruling had thereon. For aught that appears here, if this had been done the claim of appellee’s counsel that the record should have shown an agreement of the parties for judgment in vacation would have been established. [654] .2- evidence: identification of party. [653] IT. The plaintiff introduced the record of the circuit [654] ■court showing that an action was brought by Martin Webb against Sarah J. Carmichael for the land embraced in the homestead. The decree of eviction was also against Sarah J. Carmichael. The plaintiff’s name is Martha Carmichael. The defendants objected to this evidence, whereupon the court permitted the plaintiff, against the defendants’ objection, to show by parol that the plaintiff was served with an original notice in that action, in the name of Sarah J. Carmichael; that she appeared thereto, and that the decree was taken against her by the name of Sarah J. Carmichael. This ruling of the court is assigned as error. That the plaintiff is estopped from ever questioning that decree, because there was a mistake in her name in the proceedings, admits of no question. After her appearance under the mistaken name, without ■objection, she is bound by the decree, no matter what her real name is. The parol evidence was properly admitted. It consisted of nothing but the mere identification of one of the parties to the decree. It is always allowable to identify the parties to any writing by parol evidence. 3. vendor and ntent0rep?e^a" sentations. III. No objection was made to the instructions of the court to the jury. It is insisted, however, that the verdict is against instructions, and is not supported by the evidence. We need not set out either the instructions or the evidence. As to the former we may ■say they are in substance those usually given in cases of this ■character. As to the evidence, we think it sufficiently supports the verdict to preclude our interference. That White was the agent of the defendants, employed to sell the farm, we think is fully established; that he took Carmichael on the farm and showed him the dwelling-house, trees and other improvements is not denied. The land with the improvements, from which the plaintiff was afterward evicted, was not detached from the other real estate. Webb, the former ■owner, had absconded, and there was nothing in the appear [655] anee of the property to indicate that any one had any homestead right in any part of it: The acts of White in pointing out and examining with Carmichael the improvements in question were equivalent to a positive declaration that it was proposed to sell the whole of the land. Carmichael testifies that at no time did the ■defendants state that the certificate did not cover the whole ■of the real estate which was shown to him. Upon the other hand both of the defendants and their agent, White, testify that defendants stated to Carmichael that the certificate of-¡sale did not cover the homestead. It is true the defendants have more witnesses upon this ■question than the plaintiff has, but it is not our province to determine their credibility. We cannot take the place nor usurp the functions of the jury. It is claimed that the plaintiff should have ascertained whether the certificate of sale included the homestead, and that he made no effort in that direction. It is very question■able whether any reasonable diligence to ascertain this fact would have been available. We are unable, from an examination to determine whether the description in the certificate includes the homestead, and the court instructed the jury that it was a question of fact for them to determine. This, however, as it appears to us, is not a material question. If the jury found that the defendants’ agent, White, took Carmichael upon the land, and as an inducement to him to purchase pointed out these improvements, and that defendants, with knowledge of that fact, assigned the certificate knowing, as they claim they did, that it did not cover the homestead and improvements, they are in no position to urge that Carmichael should have made further inquiry. Affirmed.