The opinion of the court was delivered by
Brewer J.:
1. instructions, when not reviewed. This was an action of replevin brought before a justice of the peace, and taken on appeal to the district court. Verdict and judgment were for the defendant, which the plaintiff now seeks to reverse. The testimony is not preserved in the record. A charge to the jury, signed by the judge, is certified by the clerk as a part of the pleadings and proceedings. But there is nothing to show that x . ° . . ° tins charge contained all the instructions, it is stated in an unsigned bill of exceptions that certain instructions were asked by plaintiff and refused. But even this unsigned bill of exceptions fails to set out the instructions refused, and to it is appended a certificate of the clerk that *105the instructions thus claimed to have been refused were never in his possession, and that he had no knowledge of them. For all that appears, instructions given at the instance of. defendant, or other instructions given by the court of its own motion, may have met the very objections raised by counsel for plaintiff to those given. So also in the absence of the testimony we are unable to say that the instructions given were not both applicable and necessary to the case presented. Ordinarily, when none of the testimony, and only part of the charge is preserved, it will be impossible to-say that any error has been committed prejudicial to the party complaining. Town of Leroy v. McConnell, 8 Kas., 273.
2. Verdict in replevin; form of may be corrected. 3. Practice on appeals from Justice. Another point presented is, that the verdict is incomplete and insufficient to sustain any judgment, and that the judgment is for so much money, the value. of the property, and not in the alternative for the return of the property or the value thereof in case a return cannot be iiacp The bill of particulars alleged ownership and wrongful detention. The amended answer filed in the district court, besides a general denial, contained an allegation of ownership and right of possession. The verdict was, “We the jury find for the defendant, and Ave assess the Avalué of the property replevied at $25, and aa^o assess the defendant’s damages at $1.16-|.” No objection to the form or the completeness of the verdict Avas made at the time it AAras rendered. Under the justice’s act, (Gen. Stat., 790, §64,) it is the duty of the jury, finding for the defendant, to find whether he had the right of property, or right of possession «nly, and also the value of the property and' of the possession. Counsel claims that this section controls the form of the verdict in the district court, and that a failure to folloAV it vitiates the verdict. When a verdict is supposed to be defective counsel ought to call the attention of the court to the defect at the time the verdict is returned, that if it be merely a defect of form the jury may correct it before they are discharged. But avc do not think that section controls. Sec. 124 of the same act, (p. 801,) treating of appeals, pro*106vides that “the plaintiff in the court below shall be plaintiff in the district court; and the parties shall proceed in all. respects in th cásame manner as though the action' x t t ° had been originally instituted in the said court.”1 By this we understand that the provisions of the civil code-control in all cases tried on appeal to the district court so far as they are applicable. Tarleton v. Brily, 3 Kas., 434. In the civil code there is no section prescribing in terms the form of the verdict. The form of the judgment is provided for in § 185, p. 663: “Judgment for the-defendant may be for a return of' the property or the value thereof in case a return cannot be had.” In so far as this indicates the form of the verdict necessary, it is satisfied by the verdict returned in this case.
4. Judgement in replevin;Ee live. Upon the verdict returned the judgment should have been in the alternative, “for the return of the property or the value thereoi 111 case a return cannot be had.” Hall v. Jenness & Cohen, 6 Kas., 356, The case will be -remanded to the district court with instructions thus to modify the judgment. Costs in this court will be divided, between the parties.
All the Justices concurring.