Consolidated Gold & Sapphire Mining Co. v. Struthers
| Decision Date | 03 October 1910 |
| Citation | 111 P. 152,41 Mont. 565 |
| Parties | CONSOLIDATED GOLD & SAPPHIRE MINING CO. v. STRUTHERS et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Deer Lodge County; Geo. B. Winston Judge.
Action by the Consolidated Gold & Sapphire Mining Company against A D. Struthers and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Remanded with directions.
Rodgers & Rodgers and John Lindsay, for appellants.
C. N. Davidson and Kirk, Bourquin & Kirk, for respondent.
Ejectment. This action was brought by plaintiff to recover possession of a portion of the Ruby First placer mining claim. The claim is described as follows: "Lot 11, Sec. 7, W. 1/2 of S.W. 1/4 of N.W. 1/4, N.W. 1/4 of N.W. 1/4 of S.W. 1/4, E. 1/2 of N.W. 1/4 S.W. 1/4, N.E. 1/4 S.W. 1/4 of S.W. 1/4 and W. 1/2 of S.E. 1/4 of S.W. 1/4, Sec. 8, T. 5 N. R. 8 W." The area in controversy is described as "that portion thereof situated in the S.W. 1/4 of said section 8." The complaint is in the usual form, alleging ownership and right of possession in the plaintiff, ouster by the defendants, and general damages for the wrongful withholding by defendants. It is also alleged, by way of special damages, that the defendants have cut and removed from the ground in controversy the growing timber which stood thereon. The answer admits that defendants are in possession of the ground in controversy as alleged, and that they have cut and removed the timber therefrom, but denies all the other allegations of the complaint. It alleges that defendants are in possession and entitled to the possession as owners in fee. At the trial the plaintiff was permitted, over objection by defendants, to introduce, in support of its claim of title, the original declaratory statement of the location of the Ruby 1 placer claim, covering the ground in controversy, by one Scanlan and 12 others, conveyances by all of them to the plaintiff, an amended declaratory statement of a location made on behalf of the plaintiff by one Barker as its agent, covering the same ground under the name of "Ruby First Placer," and what is referred to in the record as a "receiver's final receipt and certificate of purchase" from the United States. The material part of the latter is as follows: etc. The foregoing documents were introduced in order the reverse of that in which they are enumerated, but no contention is now made that there was error in that behalf.
At the close of the evidence, the court directed the jury to find for the plaintiff for the restitution of the ground in controversy, submitting to them the question of the amount of damages only. The first paragraph of the charge is the following: The jury returned their verdict as follows: "We, the jury in the above-entitled cause, find our verdict for the plaintiff for the restitution of the premises described in the complaint, and for damages in the sum of $1,000." The judgment entered upon this verdict, instead of awarding to the plaintiff recovery of only that portion of the claim from which plaintiff alleges it was ousted, awards recovery of the entire claim. The defendants have appealed from the judgment and an order denying their motion for a new trial.
1. The defendants' first contention is that the verdict is fatally defective, in that it finds that plaintiff should have restitution of that portion of the Ruby First placer claim which is not in any way involved in controversy. This contention is without merit. A verdict is not to be technically construed, but is to be given such a reasonable construction as will carry out the obvious intention of the jury. In arriving at this intention, reference may be had to the issues made by the pleadings, the instructions submitted by the court, and the evidence introduced at the trial; and if by a fair and reasonable construction of it, in view of the whole record, the intention of the jury is manifest, it should be allowed to stand. Applying this rule to the verdict in this case, it is clearly sufficient. It is true that, standing alone, it may be construed to award restitution of the whole of the Ruby First placer claim yet, by reference to the complaint, we find that the portion in controversy is specifically described. The instruction refers definitely to the "premises in controversy." The jury could not have understood that they had anything to do with the undisputed portion, and, in the light of these clear references, we must conclude that the indefinite mention of the premises described in the complaints refers to the disputed portion as there described. The maxim "Id certum est quod certum reddi potest" applies. 29 Am. & Eng. Ency. of Law (2d Ed.) 1018. In any event, as we shall point out hereafter, this finding by the jury was wholly immaterial. It is obvious, however, that the judgment is erroneous in so far as it undertakes to adjudicate the title to the undisputed portion and award restitution thereof. "A judgment is the final determination of the rights of the parties in an action or proceeding." Rev. Codes, § 6710. While, when there is appearance and answer by the defendant, any relief may be awarded which is consistent with the complaint and embraced within the issues (Rev. Codes, § 6713; Merk v. Bowery Min. Co., 31 Mont. 298, 78 P. 519), yet it is elementary that the award may not extend further in any case. And, when the trial is by a jury, the judgment must be entered in conformity with the verdict. Rev. Codes, § 6800. But the defendants are not entitled to a new trial because of this error. A modification of the judgment so as to make it conform to the verdict is the full measure of relief to which they are entitled, and a new trial is not necessary for this purpose.
2. The second contention is that the verdict is fatally defective, in that it fails to find upon the issues of ownership and right of possession. It will be noted that the court in the instruction quoted stated to the jury that the evidence conclusively establishes title and right of possession in plaintiff, and that they should find in its favor for the restitution of the premises in controversy, and for such damages as the evidence shows it had suffered by the ouster and possession by the defendants. There is no complaint that the evidence is not sufficient to authorize a directed verdict as to all the issues except that of damages. The instruction in effect withdrew from the jury the issues of ownership, right of possession and ouster, and submitted the question of damages only; for, though the jury were told that they should find for the plaintiff for a restitution, in addition to the amount of damages, if any, which plaintiff had suffered, the right to have restitution involved no issue of fact, but followed as a legal conclusion from a determination of the other issues by the court upon uncontroverted evidence. The conclusion that the plaintiff was entitled to restitution was therefore to be declared by the court, and not by the jury. It is the general rule that the verdict must respond to all the material issues, or the result is a mistrial. Hamilton v. Murray, 29 Mont. 80, 74 P. 75. But the court is never required to take the opinion of the jury upon issues which have been removed from the controversy by the admissions of the parties or which are established by uncontroverted evidence; and hence the formal verdict is sufficient if it responds to all the issues properly submitted.
But counsel for defendants argue that in this character of case (one at law), where issues of fact are made by the pleadings, the parties are entitled to a jury trial as a constitutional right; that this right is in no way affected by the amount of evidence the defendant may be able to introduce in support of his claim; that, if he fails to introduce any evidence, he is nevertheless entitled to a verdict by a jury responding to all the issues made by the pleadings; and that, though the case upon the evidence as to any issue presents a question of law only, the court has no power to withdraw such issue from the jury and submit only the controverted issues. In other words, though under the statute (Rev. Codes, § 6761) the court may direct a verdict in a particular way, when questions of law only are presented, the parties are entitled to have a formal verdict upon all the issues made by the pleadings. It follows, therefore, counsel say, that, since the court did not require the jury to render a general verdict upon all the issues, the defendants are entitled, under the constitutional guaranty, to have the judgment set aside and a new trial ordered. In support of this contention they cite Hodges v. Easton, 106 U.S. 408, 1 S.Ct. 307, 27 L.Ed. 169, and Baylis v. Insurance Co., 113 U.S. 316, 5 S.Ct. 494, 28 L.Ed. 989.
This court has repeatedly held that the right guaranteed by the state Constitution (article 3, § 23) is the same as that guaranteed by the federal...
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