Suit by the appellee against the appellants, issues, trial by jury, verdict for the plaintiff motion for a *550new trial made and overruled, and judgment on the verdict. Two errors are assigned; first, the refusal to grant a new trial on the motion of the appellants; and, second, the making of an order for the collection of a part of the amount of the verdict without relief from valuation laws.-
The new trial was asked for the following reasons: first, that the damages found by the jury were excessive; second, error in the assessment of the amount of recovery, the same being too large; third, that the verdict of the jury was not sustained by sufficient evidence; fourth, that the verdict was contrary to law; and, fifth, newly-discovered evidence.
The first paragraph of the complaint was predicated on a mortgage given to secure the payment of a certain promissory note, and sought a foreclosure of the same and a sale of the mortgaged premises. The second paragraph was for personal property sold, for the amount of a certain promissory note, for work and labor and materials furnished, and for cash loaned, a bill-of particulars of which was filed.
The defendant Brown made default. Jarboe pleaded the general denial, payment, and a set-ofij consisting of a great many items due to the defendants. There was a reply to the second and third paragraphs of the answer of Jarboe, traversing the same.
The ground relied upon by counsel for the appellants in argument is that the evidence was not sufficient to justify the verdict of the jury.
All the parties to the controversy and other'witnesses were sworn, each giving his version of the matters in dispute. A part of the items of the set-off was admitted by the plaintiff to be correct. We are unable to discover any reason for interfering with the judgment on account of the alleged insufficiency of the evidence.
The other question is one of more difficulty. Tire verdict was for thirteen-hundred dollars, without showing how much of it was due on the mortgage and notes, or how much on the account. On this verdict the court, over the objection of the defendants, rendered a judgment for eleven hundred *551and sixty-four dollars, the amount said to be due on the mortgage, collectible without relief from valuation laws, and another judgment for ninety-five dollars and seventy cents, collectible in the same way, and still another for forty dollars and thirty cents, the residue of the verdict and costs, collectable generally. The note secured by mortgage, and also the small note mentioned in the second paragraph of the complaint, were collectible without relief from valuation laws.
It is provided by the code, that “when a judgment is to be executed without any relief from appraisement laws, it shall be so ordered in the judgment. When a plaintiff has included in one action demands subject to the appraisement laws, with demands made payable without any relief from appraisement laws, the court may render separate judgments upon such demands.” 2 G. & H. 220, sec. 381. There is no difficulty in following this statute when the amounts for which the different judgments are to be rendered are ascertained by the finding of the court, by the verdict of a jury, or in any other legitimate way. But in this case there was no such data upon which to render the separate judgments. It was merely a matter of guess with the court as to what amount should be said to be due on the mortgage note, the other note, or on the account. If the doctrine relating to the appropriation of payments be supposed to have any bearing on the question, it must be remembered that here there was a set-off as well as a payment pleaded, and also that that doctrine, though it might, in a proper case, be applied at the trial of the. cause, can have no application at this stage of the case.
The judgment as rendered cannot be sustained, and it is therefore reversed, with costs, and .the cause remanded.