Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-14


1hs 9atiy grfss asa 9atstaias
vANkToN DAKOTA
~
tuesday Evening, Oct. ~, 1873.
OPINIONS OF THE SUPREME COURT.
ruDLIslsED BY AUTHORITY.
Il. q. SMITH. Reporter.
Orro UnLIo, Respondent.
A. q. GARRISON, Ct al,
appellants.
In TIL SUPREME CoURr oFp1HE TERRI.
TORY OF DAKOTA, Al JUNE TERN, 1873.
Appeal from the judgment of the District
Court Of Lawrence county.
l. Verdict. "A verdict which is not res
ponsive to all the issues 10 fatally defec-
live
2. Same. Judgment. If the jury fail to
pass upon all tue issues. no valid judgment
can be entered upon their verdict.
TIipp & E'yies for appellants. and Gam.
Die Bros. for respondent.
Chief Justice Shannon, after stating the
case. delivered the ouiniOn of the court as
follows:
OPINION.
This is an action Of ej.c.nent to recover
posse sion Ut q certain portion Ot . small
town lot in the city Of Ueadwood. Itis con-
coded and shown that it Is for the recovery
OF the rear part of the lot in dispute be.
tween the same parties, at this term. The
ts: ues made and given to thejury, appear by
the amended pleadings of November 9Th,
1877. The verdict rendered was, "find fol
the plaintiff the legal title to the ground in
controversy"
By section GAL Of the code Of civil pro
cedurr, tits enacted thai, I'm an action fol
1.-THE recovery, OF real properly, upon which
permanent Id improvements have been made
"by q defendant or those under whom BIZ
claims. holding under color Of title ad-
"versely to the claim of the plaintiff, 10 gooi
sfaith. the value of such improvement
must be allowed as q counter-claim By
"such defendant"
By section 842. 1.-THE counter claim II
such action must set forth among othe
"things, the value of the land aside from III,
Improvements thereon, and also as acct
"rately % practicable the improvements ur
ION the land and the value thereof"
And by section 643. tissues may b
Joined and tried Is in other actions, and th,
value Of the land aside from the value o
THE improvements thereon, and the seps
rate value Of the improvements must b
specifically found by the verdict of the jur
1.-THE report of the referee, or the findings q
"the court"
By the next section II will be seen, tina
the judgment Of the court, under such II
sues, is made Il depend upon The speci6
findings.
10 luis, the first case of the kind brougt
before this court, such q verdict cannot b
permitted to stand. 1t is radically defectiv,
because it is not responsive to all the issue
1t does not find for the plaintiff upon all th
issues Of fact, but finds for him " the legal I
tie )" and it is absolutely silent as to tue is
sues Get up by the defendant in his counte
claim. 1u q case Of this nature, there ms
be q just counter claim, and yet q good III
in the plaintiff. An soswer containing Il
former Is useless, unless the latter be prt
supposed or admitted.
In q verdict, the jury must ]'pronounce
that is 10 say, must speak, or utter, genera
ly upon all or any of the issues. either in {
vor Of the plaintiff or defendant. They u
DOT permitted to be silent, but must 7espo1
to all the issues made by both parties. Is
!. section 260 of the code of civ. prosc)
In q case like the present which relates
real property. the doctrine asserted bv til
court in Holt Y. Van Epps, and in Dole
Burleigh, must apply with equal. if q,
greater, force and reason. dakota r q
-227.
In the former case, 1t was held, that Il
jury having failed to pass on all the issue
no valid judgment could be entered on II
verdict. Is,
As for the reason assigned. the judgmel
must be reversed, II is unnecessary at:pre
ent to consider the other errors complsine
+ of. That In relation to the case can, on a
other trial. be disposed of 10 accordan'
with the opinion Of this court, delivered
this term, between the same parties.
The Judgment of the district court mu
be reversed, and the case remanded for
new trial; and 1t Ia 80 ordered.
All thu ,noticoo eoncnrrinu