32 Colo. 259 | Colo. | 1904
delivered the opinion of the court.
The controversy here is between the owners of the Washington and Justice lode claims, situate in Gilpin county, as to the ownership of ore bodies of a vein under the surface, and within the exterior boundaries of the Washington lode extended downward vertically. The claim of each party is based upon ownership of the apex.
The cause wajs tried before a jury, and the court,
Where a special finding of fact, inconsistent with the general verdict, is so irreconcilable therewith as to be incapable of removal by any evidence admissible under the general issues, the general verdict cannot stand, and judgment entered upon it is improper. Every presumption and intendment, however, is to be indulged in favor of a general verdict, and in ascertaining whether such inconsistency exists, recourse may not be had to the evidence actually adduced at the trial, but may be to the issues as made by the pleadings; and if, by any possible competent evidence that might be produced thereunder, the apparent inconsistency can be overcome, it may be disregarded, and the general verdict permitted to stand. But in the view we take of the case, it is not necessary, for two reasons, to decide whether there is such an inconsistency as the plaintiffs in error assert.
1. We do not so hold, but for the purpose of the present opinion we assume, with both parties, that the verdict returned is a general verdict, and, with plaintiffs in error, that it is in such irreconcilable conflict with the three special findings of fact to which they allude, as to have made it the duty of the trial court to disregard the general verdict, and enter judgment upon the special findings, had action of the court been seasonably and properly invoked. Such
Many cases in Indiana, where such questions seem to have arisen more frequently than in any other .state, expressly hold that such a motion is a necessary condition precedent to the right to b'e heard in an appellate tribunal. — Bartlett v. Pittsburgh, etc., Ry. Co., 94 Ind. 281; Anderson et al. v. Hubble, 93 Ind. 570; Brickley v. Weghorn et al., 71 Ind. 497; Adamson v. Rose, 30 Ind. 380. Additional authorities are collected in 20 Enc. Pl. & Pr. 375.
2. The foregoing is upon the assumption that only three interrogatories were answered by the jury, and all of them were in favor of plaintiffs and inconsistent with the general verdict returned for defendant. The record, however, discloses that three other interrogatories submitted by the court were answered by the jury clearly and distinctly in favor of the defendant, and they support, in every particular, the general verdict. These six answers, taken together, do not show that the jury so misunderstood the issues or were in any way so confused as to make a new trial necessary. Such being the case, the doctrine seems to be well settled that contradictory and inconsistent special findings destroy each other, • and the
Tourtelotte v. Brown, 1 Colo. App. 408, is not in point here. That was not a case where the general verdict was set aside because inconsistent with a special finding, though, in the opinion, section 199 is referred to; hut probably that part of it réquiring the jury to find upon any question stated to them in writing was in the mind of the court. The point decided was, that it was error to enter judgment upon a general verdict in favor of defendant when the jury failed to find (saying that they could not agree as to it) upon a certain question, which, in the opinion of the court, had to he answered before the jury could agree upon any verdict in the ease. Clearly that is not the question for decision here.
The judgment must he affirmed, and it is so ordered.
Affirmed.