111 P. 152 | Mont. | 1910
delivered the opinion of the court.
Ejectment. This action was brought by plaintiff to recover possession of a portion of the Ruby First placer mining claim. The claim is described as follows: “Lot 11, Sec. 7, W. % of S. "W. % of N. W. %, N. W. 14 of N. W. % of S. W. 14, E. y2 of N. W. % S. W. %, N. E. % S. W. 14 of S. W. 14 and W. % of S. E. % of S. W. %, Sec. 8, T.5N.R.8W.” The area in controversy is described as “that portion thereof situated in the S. "W. 14 °f said section 8.” The complaint is in the usual form, alleging ownership and right of possession in the plaintiff, ouster by the defendants, and general damages for the wrongful withholding by defendants. It is also alleged, by way of special damages, that the defendants have cut and removed from the ground in controversy the growing timber which stood thereon. The answer admits that defendants are in possession of the ground
“Department of the Interior,
“General Land Office.
“No. 79,020.
“Receipt.
“U. S. Land Office, Helena, Mont.
“Oct. 28, 1908.
“Received of Consolidated Gold & Sapphire Mining Co. by-Nat Simon, att’y-in-faet, Butte, Mont., the sum of two- hundred and thirty-seven dollars and 50 cents, in connection with mineral' application to purchase, serial No. 0-260, for Lot 11,” etc.
The foregoing documents were introduced in order the reverse-of that in which they are enumerated, but no contention is now made that there was error in that behalf.
At the close of the evidence, the court directed the jury to find for the plaintiff for the restitution of the ground in controversy, submitting to them the question of the amount of damages only. The first paragraph of the charge is the following: ‘ ‘ The plaintiff is conclusively proven to be the owner of, and is entitled to, the possession of the premises in controversy, and you will find your verdict for it for restitution of the premises and such damages, if any, as you may find from the evidence it has suffered by the-acts of the defendants in taking possession of and' occupying the-
The jury returned their verdict as follows: “We, the jury in the above-entitled cause, find our verdict for the plaintiff for the restitution of the premises described in the complaint, and for damages in the sum of $1,000.” The judgment entered upon this verdict, instead of awarding to the plaintiff recovery of only that portion of the claim from which plaintiff alleges it was ousted, awards recovery of the entire claim. The defendants have appealed from the judgment and an order denying their motion for a new trial.
1. The defendants’ first contention is that the verdict is fatally defective, in that it finds that plaintiff should have restitution of that portion of the Ruby First placer claim which is not in any way involved in controversy. This contention is without merit. A verdict is not to be technically construed, but is to be given such a reasonable construction as will carry out the obvious intention of the jury. In arriving at this intention, reference may be had to the issues made by the pleadings, the instructions submitted by the court, and the evidence introduced at the trial; and if by a fair and reasonable construction of it, in view of the whole record, the intention of the jury is manifest it should be allowed to stand. Applying this rule to the verdict in this case, it is clearly sufficient. It is true that, standing alone, it may be construed to award restitution of the whole of the Ruby First placer claim, yet, by reference to the complaint, we find that the portion in controversy is specifically described. The instruction refers definitely to the “premises in controversy.” The jury could not have understood that they had anything to do with the undisputed portion, and, in the light of these clear references, we must conclude that the indefinite mention of the premises described in the complaint refers to the disputed portion as there described. The maxim, “Id cerium est quod cerium reddi potest,” applies. (29 Am. & Eng. Ency. of Law, 2d ed., 1018.) In any event, as we shall point out hereafter, this finding by the jury was wholly immaterial.
2. The second contention is that the verdict is fatally defective, in that it fails to find upon the issues of ownership and right of possession. It will be noted that the court in the instruction quoted stated to the jury that the evidence conclusively establishes title and right of possession in plaintiff, and that they should find in its favor for the restitution of the premises in controversy, and for such damages as .the evidence shows it had suffered by the ouster and possession by the defendants. There is no complaint that the evidence is not sufficient to authorize a directed verdict as to all the issues except that of damages. The instruction in effect withdrew from the jury the issues of ownership, right of possession and ouster, and submitted the question of damages only; for, though the jury were told that they should find for the plaintiff for a restitution, in addition to the amount of damages, if any, which plaintiff had suffered, the right to have restitution involved no issue of fact, but followed as a legal conclusion from a determination of the other issues by the court upon uncontroverted evidence. The conclusion that the plaintiff was entitled to restitution was therefore to be declared by the court, and not by the jury. It is the general rule that the verdict must respond to all the material issues, or the result is a mistrial.
But counsel for defendants argue that in this character of case (one at law), where issues of fact are made by the pleadings, the parties are entitled to a jury trial as a constitutional right; that this right is in no way affected by the amount of evidence the defendant may be able to introduce in support of his claim; that, if he fails to introduce any evidence, he is nevertheless entitled to a verdict by a jury responding to all the issues made by the pleadings; and that, though the case upon the evidence as to any issue presents a question of law only, the court has no power to withdraw such issue from the jury and submit only the controverted issues. In other words, though, under the statute (Revised Codes, sec. 6761), the court may direct a verdict in a particular way, when questions of law only are presented, the parties are entitled to have a formal verdict upon all the issues made by the pleadings. It follows, therefore, counsel say, that, since the court did not require the jury to render a general verdict upon all the issues, the defendants are entitled, under the constitutional guaranty, to have the judgment set aside and a new trial ordered. In support of this contention they cite Hodges v. Easton, 106 U. S. 408, 1 Sup. Ct. 307, 27 L. Ed. 169, and Baylis v. Travelers’ Ins. Co., 113 U. S. 316, 5 Sup. Ct. 494, 28 L. Ed. 989.
This court has repeatedly held that the right guaranteed by the state Constitution (Article III, sec. 23) is the same as that guaranteed by the federal Constitution (Seventh Amendment), because the federal Constitution was the fundamental law of the territory at the time it was admitted into the Union as a state, and the right as it then existed was preserved in the state Constitution. (Kleinschmidt v. Dunphy, 1 Mont. 118; State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 Pac. 589; Montana Ore Pur. Co. v. Boston & Mont. C. C. & S. Min. Co., 27 Mont. 536, 71 Pac.
The statute (Revised Codes, sec. 6761) provides that, when the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto. But, since the decision is in any event that of the court, it cannot prejudice the rights of the parties if the formal procedure prescribed is not pursued. If the court pursues the latter course, it is at most a mere irregularity, which this court may not take notice of. (Revised Codes, sec. 6593.) The right of the plaintiff and defendant to a jury trial upon issues of fact stands upon the same footing. If the pleadings present such issues, prima facie each is entitled to have a jury determine them; but, if during the course of the trial it becomes apparent that there are no such issues in the evidence, the decision falls within the province of the court. In view of the cases cited, we are justified in concluding that this has always been understood, both by the profession and the courts in this state, to be the meaning of section 6724 of the Revised Codes, which is substantially the same as the provision contained in the Bannaek Statutes, enacted by the first territorial legislature in 1864 (Bannaek Statutes, p. 68, see. 127). The rule of practice contended for by counsel, strictly applied as it was in Hodges v. Easton and Baylis v. Insurance Co., supra, was never followed by the courts of the territory, nor has it been
It was said in Murray v. Hauser, supra, that the practice in this state touching the methods by which the court may upon trial dispose of actions at law is somewhat more liberal than the practice prevailing in the federal courts. This statement is justified by the cases which we have cited. In the case before us, the court virtually, though not formally, withdrew all the issues from the consideration of the jury, except the issue made as to the amount of damages. If there had been no such issue in the case, the court would have been justified in directing a verdict .upon the whole case. The instruction in effect submitted to the jury a special finding as to the amount of damages, and, upon entering judgment, the judge decided all the other questions in the case. This, we think, while not strictly in accord with the statute, was well within the province of the court, and the judgment should not be reversed because the statute was not strictly pursued.
A different rule applies in criminal cases. The trial court may never direct a verdict for the state; for, though the defendant may introduce no evidence at all, it is for the jury to say whether the evidence introduced by the state has overcome the presumption of innocence which the law indulges in favor of the defendant, and has established his guilt beyond a reasonable doubt. (State v. Koch, 33 Mont. 490, 85 Pac. 272, 8 Ann. Cas. 804.)
3. Error is alleged upon the action of the court in overruling the objection of defendants to the admission in evidence of the original and amended declaratory statements of location of the Ruby placer mining claim, and the receipt of the receiver of the United States land office. To the declaratory statements it was objected that they do not comply, in several particulars, with the requirements of the statutes of Montana. The defendants are not in a position, however, to take advantage of these defects, if in fact they are such. The original location of the claim was completed January 30, 1892. The amended location was com
Touching the receiver’s receipt, it was objected that it was immaterial and irrelevant, because the plaintiff in its complaint does not deraign title from the United States in any other way than by location. In the brief, contention is made that the paper, though designated as a final receipt, upon its face evidences nothing further than an offer to purchase by the plaintiff, and is not a muniment of title, such as the certificate of purchase usually issued, to purchasers by the United States land department upon final entry. The objection urged at the trial was, of course, not maintainable. In ejectment, the plaintiff is not required to deraign his title in his complaint. Under the allegation of ownership, he may prove such title as he has from whatever source he may have acquired it, and by any species of conveyance which is recognized by law. Here the allegation is of ownership and right of possession. The receipt, though showing that the plaintiff had paid money to the receiver “in connection” with the purchase of the claim, does not certify that it had purchased it or is entitled to patent. It is therefore not such a certificate as is referred to in section 7931, Revised Codes, as prima facie evidence of title. It was wholly valueless as evidence, and should have been excluded upon proper objection. But its admission wrought no prejudice, since the alleged declaratory statements furnish ample proof of plaintiff’s title.
Modified.