108 Neb. 440 | Neb. | 1922
In this cause of action, which is one at law, defendant is
Now the question is: Did the court commit reversible error when it set aside these special interrogatories and entered judgment on the general verdict? This presents a fairly easy question for our consideration.
An examination of section 7859, Rev. St. 1919, shows that what the court did in this matter in sustaining the motion of plaintiff is diametrically opposed to the provisions of the statute. That action of itself entitles defendant to a new trial. This theory of the case is upheld in the case of Culbertson Irrigating & Water Power Co. v. Wander, 51 Neb. 539. The third paragraph of the syllabus meets the law question precisely -as we have it in the instant case and is decisive of the situation here. It does not matter what citations there are on this point, they do not or cannot overrule the section of the statute which was enacted to afford relief for this situation when it would arise in the course of litigation, and it is this section of the statute which is decisive of this case under the facts. The plain remedy in this case, in our opinion, when such an inconsistency between the general verdict and the special findings exists, is to. grant a new trial. The issue in
Under the facts and evidence as submitted, we must reverse this case and remand it for further disposition, for the reason that the court accepted a verdict brought about by violation of the provisions of section 7859, Rev. St. 1918.
Reversed and remanded.