delivered the Opinion of the Court.
Invоlved is an attack on a jury verdict and the resulting judgment for defendant Earl J. Green, on the basis of the absence of the presiding judgе and an affidavit of all twelve jurors certifying that “If the Presiding Judge had been available to answer our questions we certify that the vеrdict would have been different * *
Plaintiffs, Charles G. Johnson and Eunice Johnson, allegedly rented a building in Anaconda to defendant from February 1, 1964 to December 22, 1964, at a rental of $150 per month for a laundry business. Plaintiffs alleged they were not paid the rental and sued tо recover, plus damages for repairs and replacement and for attorney fees. The total amount sued for wаs $2,346.25.
The defendant denied renting the building for the period of February 1, 1964 to December 22, 1964, denied damage and denied any contraсt for attorney fees. Defendant counterclaimed asserting renting from January 1, 1961 to October 31, 1963 and that during that time the roof leаked causing damage to equip *253 ment and clothing and sought the sum of $2,980.37 as damages.
Trial was had; Evidence presented and both sides rested.
Judge Nat Allen, the presiding judge, who assumed jurisdiction after the local judge was disqualified, instructed the jury and then stated:
“Ladies and gentlemen of the Jury. The attorneys have kindly consented that Judge Stewart may take the verdict in this ease, and when you come back I will be headed for Roundup, and Judge Stewart will be here to take the verdict, and I thank both attorneys for so stipulating. I want to thank the Jury for your kind attention to this case — you have been very good, and I know that it is a hard case to sit and listen to in those hard chairs — some of you have been complaining about the hard chairs, and I have spoken to Judge Stewart about this, but, of course, I don’t guarantee that the next time they are gоing to be soft, but at least he has the information. I want to commend the attorneys for their fine presentation of this case, and I must say that it is always a pleasure to preside before two attorneys with the integrity and ability that you gentlemen have shown on both sides of this ease, and it certainly was a pleasure to be here in Anaconda, and I think I should thank you very kindly, both of you.”
The jury then rеtired and brought in a verdict, which read, in pertinent part: “We, the jury in this action, find for the Defendant. Dated this 5th day of October, 1967.” The verdiсt was received by Judge Stewart and judgment entered thereon for costs.
We have only a partial transcript showing the remаrks of Judge Nat Allen previously quoted and the agreement of counsel to those remarks. We also have the original cоurt file and the exhibits contained in the court file and the instructions given. We are told, without dispute, that the jury was furnished with two forms of verdict, one for the defendant and one for the plaintiffs. The verdict form for the plaintiffs had a blank, which was to be filled in with the amount if the vеrdict was *254 in favor of the plaintiff. As related before, the jury used the-form for the defendant with no amount or no blank. The judgment was for costs of $26.50, dated October 11, 1967.
Subsequently on October 20, 1967, a notice of intention to move for a new trial was filed which listed among оther grounds charges of irregularity of the jury proceedings. The motion for new trial was based in part upon an affidavit of the jurors. The affidavit, dated October 13, 1967, signed by all twelve jurors read as follows:
“We, the undersigned Jurors, in the above entitled case do hereby state that we were in favor of the plaintiffs having our verdict in the above entitled case but we were under the impression that our verdict for the plaintiffs would necessarily have to award them the full amount and many of us did not think that the plaintiffs should have the full amount although they should have some amount awarded in their favor. We were told that the Presiding Judge was leaving Anaconda as soon as we retired to the jury room and so we were of the opinion we could not have our questions answered as tо whether or not we could award the plaintiffs less than the full amount asked by them. We finally decided it had to be the full amount or nothing. If thе Presiding Judge had been available to answer our questions we certify that the verdict would have been different and for that reason we are signing this affidavit in support of the plaintiffs’ motion for a new trial because we now know that we could have awаrded the plaintiffs something less than the full amount.”
Two other affidavits were filed by counsel for the defendant. One juror averred that оn the first ballot the vote was six to six. The second affidavit was by the bailiff who states that no request was made by any juror during its deliberations.
Thе motion for new trial was denied by Judge Allen after oral argument and briefs; this appeal followed raising two stated issues: first, that errоr was committed by the presiding judge leaving the trial court; and, second, that plaintiff was de *255 uied due process of law. On this second so-called issue, the assertion is that because the judge was absent the jurors could not have answers to their questions and thеreby a fair trial was ■denied.
It is immediately apparent that when counsel agreed do Judge Allen leaving the district with Judge Stewart being present to take the verdict that they should not be heard to complain on appeal. The instructions given were quitе simple, no problem over the issues is apparent. No instruction specifically on damages was given, and we assume nоne was offered by plaintiffs other than the form of the verdict with a blank to be filled in. We can assume too, that counsel in his closing argument discussed the matter of damages.
While we do not approve of judges leaving the trial while a .jury is deliberating, yet where counsel accedes to it specifically .he will not be heard to complain on appeal. See State v. Oakland & Friedlund,
The rule is generally stated that the propriety of a trial .judge’s remarks (or conduct) where not objected to cannot be raised on appeal. Batchoff v. Craney,
But we go one step further. The rule in Mоntana is that a jury may not impeach its own verdict based on mistake of the evidence or misapprehension of the law. See Putro v. Baker & Mannix Electric,
*256 Finding no error, tbe judgment is affirmed.