Harris v. Harris

• Decision Date: 04 December 1944
• Docket Number: 3420.
• Citation: 153 P.2d 904,62 Nev. 473
• Parties: HARRIS v. HARRIS.
• Court: Nevada Supreme Court

153 P.2d 904

62 Nev. 473

HARRIS v. HARRIS.

No. 3420.

Supreme Court of Nevada

December 4, 1944

Appeal from District Court, Eighth District, Clark County; Geo. E Marshall, Judge.

Suit for divorce by Annabelle Harris against George Harris. From an adverse decree, plaintiff appeals. On plaintiff-appellant's motion for an order striking out the document designated as "Special Findings of Fact by the Jury" and to strike from the divorce decree certain specified parts thereof.

Motion to strike the special findings of fact by the jury allowed and motion to strike certain portions of decree denied.

Lewis & Hawkins, of Las Vegas, for appellant.

Louis Cohen, of Las Vegas, for respondent.

ORR Chief Justice.

An appeal has been taken in this case on the judgment roll alone, and among the papers which have been certified to as constituting the judgment roll is one designated as "Special Findings of Fact by the Jury", and another document designated as "Special Verdict". There is no general verdict.

Appellant has moved this court for an order striking the document designated as "Special Findings of Fact by the Jury", and further asks us to strike from the decree of divorce certain specified parts. The motion to strike the said document designated as "Special Findings of Fact by the Jury" is on the ground that findings form no part of said judgment roll for the reason that there is no general verdict, and that special findings of fact by the jury can only be returned where a general verdict is rendered.

Respondent seems to concede that special findings can only be returned in aid of a general verdict, but asserts that the so-called "Special Findings of Fact by the Jury" as found in the judgment roll is in fact a special verdict; that the substance rather than the form should be looked to; and that we should disregard the fact that the jury designated the document as "Special Findings of Fact" and consider said document as a special verdict.

Had the jury filed but one document in the case the argument of respondent might be more persuasive. We have a separate, independent document which has been returned by the jury and designated by it as its special verdict, and to adopt respondent's theory would require this court to disregard the document so designated and replace it with an entirely different one. This would be amending the record and a disregard of the evident intention of the jury. There is no occasion for construction or interpretation. The two papers are separate and distinct, plainly indicating the intent and purpose of the jury in each instance. It may be the jury misconceived its functions and acted under the belief that it possessed the same right to file findings with a special verdict as in the case of a general verdict, for there is no other apparent tie-in between the two documents returned by it.

"Special findings have no force or validity as such unless they accompany a general verdict." Bancroft Code Practice and Remedies, Vol. II, p. 2054, sec. 1588, note 1. "Of course, special interrogatories submitted should be disregarded in case the jury renders a special verdict." Bancroft Code Practice and Remedies, Vol. II, p. 2055, sec 1589, note 8. "If, in their discretion, they render a special verdict, and particular questions of fact have been submitted to them,...