Jarboe v. Brown

On Petition for a Rehearing.

' Downey, J.

A petition is filed in this case in which a rehearing is asked, on the grounds,

First. The judgment of the court is supposed to be *552erroneous in reversing the judgment of the court below on account of the form thereof.

G. A. Knight, G. P. Stone, and E. Miles, for appellants. W. Curtis, I M. Compton, TV. TV. Carter, and A. D. Coffee, for appellee.

Second. In granting a new trial to the appellants on account of the form of the judgment below.

Third. In ordering the cause to the court below without special instructions as to the form of the judgment to be rendered therein.

We are still of the opinion that the judgment was properly-reversed. We did not order a new trial to be granted, nor did we decide that the verdict should be set aside. The only error that we found was in rendering the judgments, and to that extent only does the reversal- extend. If counsel for the plaintiff had required a finding as to the amount due on the notes and on the account separately, it would have been easy to render the proper judgments. This they did not do.. Having found no reason for setting aside the verdict, but having only reversed the judgment, we supposed it would be understood that a judgment in the ordinary form was to be rendered on the verdict, and hence no more definite instructions were deemed necessary. We foresee, however, that this course may not be convenient, or, perhaps, the mortgaged premises could not be sold at all on such a judgment. 2 G. & H. 297, sec. 640. We have, as a means of extricating the appellee from the entanglement, concluded to instruct the court to render one judgment, not waiving the benefit of valuation laws, for the whole amount of the verdict, or if the plaintiff prefer, to grant a new trial on the motion of the defendants.

The petition for a rehearing is overruled, and the court is instructed to proceed as in this opinion indicated.