Drake v. Justice Gold Min. Co.

• Decision Date: 07 March 1904
• Citation: 32 Colo. 259,75 P. 912
• Parties: DRAKE et al. v. JUSTICE GOLD MIN. CO.
• Court: Colorado Supreme Court

75 P. 912

32 Colo. 259

DRAKE et al. v. JUSTICE GOLD MIN. CO.

Supreme Court of Colorado

March 7, 1904

Error to District Court, Gilpin County; Allison H. De France Judge.

Action by Lester Eugene Drake and others against the Justice Gold Mining Company. From a judgment in favor of defendant plaintiffs bring error. Affirmed.

Teller & Dorsey and H. M. Orahood, for plaintiffs in error.

Thomas Bryant & Lee, for defendant in error.

CAMPBELL C.J.

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 was tried before a jury, and the court, upon request, submitted, and the jury answered, three interrogatories, and also returned what the parties call a 'general verdict in favor of the defendant,' on which judgment for it was entered by the court. The plaintiffs in error claim that the answers to these three interrogatories were in their favor, and are so inconsistent with the general verdict that, under section 199 of our Civil Code, so providing, the special findings of fact in such circumstances must control the general verdict.

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 an inconsistency may be waived by the party against whom it operates, or he may, in the appropriate way, complain of it. If, however, a party desires to have heard in an appellate tribunal his objection to the entering of a judgment on a general verdict which is inconsistent with special findings he must first call the attention of the lower court thereto by a motion for judgment upon the special findings notwithstanding the general verdict. A motion for a new trial does not save the point. Here plaintiffs in error neglected to move for judgment on the findings, and therefore they may not, on this review, for the first time be heard as to the...