Darling v. West

Day, J. i. PPACTIC33: verdict: fail-lire to answer interrógalories- • — It appears from the special findings that the defendants owned a homestead in Harrison county, which they sold in September, 1868: that they set apart a portion or the proceeds for the purchase of a new homestead, and that in July, 1869, with a part of the proceeds of.the sale of the homestead in Harrison county they purchased the homestead in question. Intermediate the date of the sale of the old and the acquisition of the new homestead, in April, 1869, the debt in question was contracted. The reply alleges that the defendant, prior to and at the date of the execution sale, represented to the plaintiff, his agents and attorneys, and knowingly caused and permitted them to believe, that the defendants had and were entitled to no homestead exemption as against said indebtedness, and that their homestead right accrued in August, 1869, and that the plaintiffs, relying upon said representa [263] tions and belief, bid and paid for said property the sum of fifteen hundred dollars. The defendants introduced in evidence a homestead selection, executed and filed for record August'1, 1876, in which the defendant George West claims the property in controversy as his homestead, and states that he has continually resided upon and occupied said land with his family as a homestead for the seven years last past. It was thus, as appears from the pleadings, made a distinct issue as to whether the defendants did by their representations cause plaintiff to believe that their homestead right accrued in August, 1869, a date subsequent to the contracting of the debt to plaintiff. The plaintiff submitted to the jury two questions for special findings, as follows: “Did the defendant, by means of the homestead selection which has been introduced in evidence, executed by the defendant George West, under date of August 1, 1876, and recorded in the records of this county, and by means of other representations made to plaintiff or his agents or attorneys, cause plaintiff to believe that their homestead right accrued in August, 1869? “Did the plaintiff make his bid of one thousand dollars, at the sheriff’s sale, relying upon the belief that defendant’s homestead right accrued in August, 1869?” Under the issues these questions were pertinent and material. In order to reach a general verdict the jury should have been able to answer these questions either in the affirmative or in the negative. Yet the jury have returned a general verdict for the defendants, and in answer to both of these questions they have said: “We do not know.” One of the grounds of the motion for a new trial is as follows : “It appears, from the answers returned by the jury to the thirteenth and fourteenth questions submitted for special findings, that the jury found their general verdict without ■passing upon material issues presented by plaintiff’s reply, upon which issues evidence was submitted upon the trial. ” [264] We think this ground of the motion for a new trial should have been sustained. We do not see how a general verdict can be upheld while the jury admit that they have no knowledge as to matters which are material to the determination. Some evidence was introduced upon the subject of these •special interrogatories. If the jury considered it insufficient to justify them in answering these interrogatories in the affirmative, they should have answered them in the negative. Not having determined these questions either way, they could not understandingly bring in a general verdict. In the cases' relied upon by the appellee (Dively v. City of Cedar Falls, 27 Iowa, 227 (231), and Garretty v. Brazell, 34 Iowa, 104) the special interrogatories do not seem to materially affect the result. In the other ease cited by appellee — Mershon v. The National Ins. Co., 34 Iowa, 87 (90) — there was no failure to answer interrogatories, and the question was upon the right to judgment on the special findings in opposition to the general verdict. For the error discussed the judgment must be Reversed.