Uhlig v. Garrison

| Supreme Court Of The Territory Of Dakota | Dec 15, 1878

Shannon, C. J.

This is an action of ejectment to recover possession of a certain portion of a small town lot in the city of Deadwood. It is conceded and shown that it is for the recovery of the rear part of the lot in dispute between the same parties at this term. The issues made, and given to the jury appear by the amended pleadings of November 8th, 1877. The verdict rendered was, “find for the plaintiff the legal title to the ground in controversy.” By section 641, of the Code of Civil Procedure, it is enacted that “ in an action for the recovery of real property, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counter-claim by such defendant. By section 642 “the counter-claim in such action must set forth, among other things, the value of the land aside from the improvements thereon, and. also, as accurately as practicable, the improvements upon the land and the value thereof.” And by section 643, “ issues may be joined and tried as in other actions, and the value of the land, aside Jrom the value of the improvements thereon, and the separate value of the improvements, must be specifically found by the verdict of the jury, the report of the referee, or the findings ol the court.” By the next section it will be seen that the judgment of the court under such issues is made to depend upon the specific findings. In this, the first case of the kind brought before this court, such a verdict cannot be permitted to stand. It is radically defective, because it is not responsive to all the issues. It does not find for the plaintiff upon all the issues of fact, but finds for him “ the legal title” and it is absolutely silent as to the issues set up by the defendant in his counter-claim. In a case of this nature there may be a just counter-claim, and yet a good title in the plaintiff. An answer containing the former is useless, unless the latter be presupposed or admitted.

In á verdict the jury must “ pronounce ” — that, is to say, must speak, or utter — generally upon all or any of the issues, either in favor of the plaintiff or defendant; they are not permitted to be silent, but must respond to all the issues made by both parties. (See section 260, of the Code of Civil Procedure.)

In a case like the present, which relates to real property, the doctrine asserted by this court in Holt v. Van Eps, and in Dole v. Burleigh, must apply with equal if not greater force and reason. (1 Dak. R., 207, 227.)

In the former case it was held, that the jury having failed to pass on all the issues, no valid judgment could be entered on the verdict. As, for the reason assigned, the judgment must be reversed, it is unnecessary at present to consider the other errors complained of. That in relation to the lease can, on another trial, be disposed of in accordance with the opinion of this court, delivered at this term, between the same parties.

The judgment of the District Court must be reversed, and the cause remanded for a new trial, and it is so

ORDERED.

All the Justices concurring.