The opinion of the court was delivered by
Kingman, C. J.:
*606i Payment ot iihf”conm]>uisory — aud effect oí. *605A question for decision is raised in limine. The judgment was.rendered in the district court on the 16th of October, 1867. Execution was issued on the 8th of April, 1868, which was placed in the hands of the sheriff, who, with the execution in his hands, collected the money of Auld, one of the plaintiffs in. error, on the 26th of May, 1S68. The case was brought to this court, and the parties entered an appearance, before the expiration of three years from the rendition of the judgtnent. *606motion is made to dismiss the petition in error in this court “because the judgment is a satisfied, and therefore there is no judgment “ to affirm or reverse.” The motion must be denied. The payment was compulsory. The sheriff had the execution in his hands, with power to enforce it, and under obligation to do so. A payment made under such circumstances is always held to be an involuntary payment, and works no estoppel on the party making it. It is not intended to decide that a voluntary payment of a judgment in any case is a bar to an appeal, only that a compulsory one is clearly not. There is another reason for denying the motion in this case: The suit was for the recovery of specific personal property valued at $1,472. It had been taken by the sheriff and delivered to the plaintiff in the action, and the judgment confirmed the right of the plaintiff to the property, and adjudged the defendant to pay one cent damages and costs. To hold a party precluded from prosecuting an appeal from a judgment where interests so considerable had been adjudicated upon adversely to him, because he had even voluntarily'paid the judgment of one cent, would be a severe application of rules of law, if they exist. The code gives the right to take a case up on error, and limits that privilege to three years after final judgment. In this case, at least, the plaintiff in error has done no act that deprives him of that right, and the motion must be denied.
The errors alleged are, first, the refusal of the court to set aside the order for the delivery of the personal property, because of the insufficiency of the affidavit; second, compelling Taylor to elect on which ground of his answer he would go to trial; third, striking out the third ground *607of defense in the answer of Auld; fourth, the instructions given and refused. And of these in their order.
2. ekpmtot; ?ffiSfoL0f ."•cry. I. The affidavit states, with the other requisite averments, that the goods and chattels were not taken “ in execution on or under a judgment against the plaintiff,” omitting the words “ or order,” which the statute required. See fourth clause of section one of ch. 31, Oomp. Laws 1862, p. 23V; (Gen. Stat., 1868, p_ g0^ g 177.) The affidavit contains also the averment that the goods and chattels were not taken on any other mesne or final process against the plaintiff. It would seem that this last statement is broad enough to cover all possible cases. If not taken in execution on a judgment, or on any other mesne or final process, it would be difficult to perceive how they could be taken by any legal process issuing from a court. All the other statutory requirements are embraced in the affidavit save the omission noted. We would be reluctant to hold that any requirement of the statute was immaterial because we could see no reason for it, and are not under the necessity of doing so in this case. The motion was not made till after the answers were filed and the issues made up. The motion was not called up for the action of the court until six months afterward, and then on the day the cause was called for trial. In New York this has been held too late; that the party waived the right to make the motion by filing his answer. We are not convinced that this ruling is correct. It will be remembered that the code did not make the same provisions in cases for the discharge of an order of delivery that it did for the discharge of attachments. An attachment may be discharged at any time before judgment, while there is no-time specified when an order for the delivery of personal property may be made. Some discretion seems to *608be left in tbe courts in that matter, and it is not unreasonable to say that in ordinary cases such a motion ought, not to be heard just as a cause is called up for hearing,, and such are the facts in this case, as shown by the-record. Another' reason might be given for not disturbing the ruling of the court in this matter. The verdict shows the property to be the property of the plaintiff;. and if so, then no’injury is sustained by the defendants-by a refusal to set aside the order of delivery. Thinking-that the affidavit substantially conforms to the law by embracing every substantive statement, and that the-motion to set aside the order was properly overruled for the reasons given, we shall not disturb the judgment because of the alleged defect in the affidavit, and the ruling of the court thereon.
The motion to discharge the order of delivery stated as another ground of discharge that the facts did not authorize the issuance of the order; but as the facts do not appear in the record, we are not able to say whether the decision of the court on such ground was correct or not. We are. to presume it was, in the absence of the facts.
II. The second alleged ground of error is the striking out a part of Taylor's answer. The first part of Taylor’s answer is a general denial; the latter part is a disclaimer of any interest in or the right of possessiou in the goods and chattels in controversy in the action. On motion the court struck out the latter part of the answer. Upon the-question as to whether the ruling was correct, the justices are divided in opinion, and therefore the decision of the court below is left to stand. The question embraced, at most, in this case but a small item of costs, but small as it is, it has been the subject of careful and anxious deliberation, with the result above indicated.
*6093 Assweb; si rileinE out part, III. The third alleged error is the striking out the third ground of defense in defendant Auld’s answer. The first clause of his answer is a general denial; the third clause sets up that Auld did not wrongfully detain the property, that he did not have possession or control of it, and had not had within one year previous to the commencement of the action, and was wholly without the pow.er to deliver possession of it. Either of the three propositions in this clause of the answer constitutes a bar to the action if sustained by testimony, and unexplained or unqualified by other testimony; and each and all of them could be given in evidence under the general denial. What advantage the plaintiff could derive from striking out this clause, or what injury the order striking it out indicted upon the defendants, is more than we can perceive; and consequently we do not find any error in the action of the court on this point.
T 4. Instructions; off^esumed to IV. The instructions asked by the defendants were refused. We have not examined the instructions critically, and do not propose to. They refer to testimony, and none of the testimony appears in the record. Whether it was proper to refuse the instructions asked, we cannot say, and must presume the action of the court was correct. Admitting the instructions to be correct propositions of law, still, if there was no testimony upon which they would bear, it was proper for the court to refuse them. A court is not bound to give abstract propositions of law to a jury, having no relation to the testimony in the case. Indeed, such instructions ought not to be given, as they may well confuse the jury, and tend to withdraw their minds from the true points in controversy. Iu the absence of the means of determining whether the instructions were *610proper or not, we cannot say there was error in refusing them.
5. Partiks. Who JffinuffiSin V. Two other questions were raised in argument, by the counsel for the defendant in error, which would more properly have been considered in the first part of this opinion, but were postponed to its conclusion as they will more readily be understood from what has been already, said.
First: It was insisted that Auld and Taylor could not unite in the petition in error, and in prosecuting the case in this court, inasmuch as some of the alleged errors affected each only of the plaintiffs in error. The difficulty is more imaginary than real. Both were made defendants below; both excepted, and ought to have united in bringing the case to this court, and have the whole case settled at once. The spirit and letter of the code sustain such practice.
o. practice; Second: It was urged that this court could not at this late day inquire into the action of the court in refusing to discharge the order of delivery on account of the insufficiency of the affidavit. The statute is plain. The limitation is three years on this and all questions brought up on the final order or judgment in a cause.
The judgment of the court^elow is affirmed.
Valentine, J., concurring.
Brewer, J., not sitting in the case.