The record-union., 1891-01-14
cry, on or about May Is. 1855, release w. s.
ment in the complaint herein mentioned?

cry, on or about May / 5. 1SSS, release W. S.
Chapman from all liability under the judg-
ment in the complaint herein mentioned?
"Answsr-1es.
&c. c. HARRIS, Foreman.
This verdict, it appears, was in answer to
special questions, embracing special issues
submitted to the jury by the questions above
given.
There was no ether verdict and 10 general
verdict. Nor does IL appear that any general
verdict was demanded by either party.
/. appears from the record that the trial
proceeded after the return of the verdict, both
parties introduced evidence, and on the oath
and 25Lh OF April, 1889, it is stated sad
t,sat acqs compteted and submitted to the court
Jor decision ard Judgment, with the privilege
TO the parties to file briefs herein, which was
the Court subsequently rendered its de-
cision. finding on ali the issues in the case,
disregardins the verdict, treating it as non
answers OF the jury ON the questions sub
Initted TO them, and rendered judgment for
plaintiff for sum of money. The defendant
appealed.
The above facts are taken from the record,
and CT them must the solution OF the points
ia this case be made.
Was there any verdict rendered on which
Judgment could be entered?
THIS is an action at law, and the defenses set
up on behalf OF defendant were all legal de-
fenses. Payment is certainly q legal defense,
and SO Is tie discharge of q surety by reieas-
ing his principal, or by surrenderipg lien on
property sufficient. If sold to pay the debt for
whif.i, the surety had ohIisafed hinoseif We
have no doubt OF the corrcctnessof these rules.
Such is the common law, and it is so pre-
scribed in the Civil Code. (Sections 2S40 and
2S19.j
The verdict cannot then be regarded as adj
visory to the Court. The case is not one in
equity. It has no such features All the
questions arising on the defenses set up relate
to legal defenses II the facts above mem
tened exist, the surety is discharged by opera
ton OF law, without the necessity of appealing
TO n court of equity 10 obtain such discharge
The fact that the statute requires that the
judgment must be entered, payable in due
coarse of administration docs not make this
an eqaity case. This doctrine applies particu-
larly To actions for the recovery of money,
which are almost always actions at law. Ger
tainly such must be the form of the judgment
i'll q recovery on a promisSory note.
By the statute C.. G. p, Section 625) in an
| action for the recovery of money, a jury may
| in their discretion, render either q general or
| a special verdict In such a case as the one
| before us, the Court cannot direct the jury to
fnda special verdict, but it may, in sSch case
and in fact in all cases, instruct the jury if
| they render Il general verdict, to find upon
| particular questions of fact, TO be stated in
! writing, and may direct written finding
/ thereon. This finding on the written cues
| ton must be returned and filed with the Clerk
| and entered on the minutes of the court
! When the special finding of facts on the qucs-
/ tions submitted is inconsistent with the gen.
eral verdict. the special finding controls the
general verdict, and the Court is bound to
give Judgment accordingly; that is in accord
/ ance with the special finding.
| 1t must be held, nothing appearing TO the
! contrary, that the court Instructed the Jury
in accordance with law, that is If they found a
! general verdict, TO find on the questions SUBJ
1nitted TO them. We cannot assume or pre-
! sumo that the Court violated the law in .ail-
ing TO direct the jury to find Il general verdict
| in connection with their answers to the ques-
1 tions. unless the record shows it. The record
must put the court in the wrong II it does
not, it must be held that the court acted in ac-
cord with the rules OF law.
We must presume then that the Jury did
not obey the instructions of the Judge, in
failing to find general verdict, as theywere
told to find.
either party had the right to have the
court direct the jury, when they returned
! their verdict on the questions submitted, to
return a general verdict. This was not done,
and it must be held that this right was
waived by each party to the action.
What ttien is the eject OF the verdict which
was rendered? Neither party asked for judg-
lnent ON the verdict as rendered. If this had
might have objected the objection. if MADE. mad
should have been sustained. and the result
would have been a mistrial. The court could
not, of its own motion, have ordered judg-
ment on the verdict. 1t was not such a YER
| diet as Judgment could have been rendered
/ on, unless by consent OF both parties II
I judgment had beer entered on it by consent
! the maxim would apply concensus toTejt e7,-
/ rcrera, and the judgment would be valid.
This was not a special verdict. A special
verdict is defined by the Code as that by which
/ the jury tlnd the facts only, leaving the judg-
ment to the Court. &C. C. +, Sec ga y The facts
/ found by the jury are all the facts III issue. on
/ these facts so found the Court renders judg-
lnent. tSee Breeze VS.. Doyle, 1 8 Cal. 101)
When the Jury finds a special verdict thev
! arc not bound to find a general verdict. In
| this case they might have returned either q
| special or general verdict. Either was with
/ in their power; and in this they were beyond
! the control of the Court. &C. c. p. Sec 6250
4 The special finding in this case did not dispose
OF all the issues. 1t did not dispose of the de-
! Tense of payment and other issues In any
| point OF view it was not n special verdict 1t
! was special finding, regularly 10 be accom-
! panied by a general verdict. Not being so ac-
! companied, IL was OF no legal effect. and no
| Judgment except by consent of the litieants
could have been entered on it. II was q nuII,
ity to which no validity could have been inl-
puted, unless the parties had agreed that if
should be regarded, SO far as il disposed of the
issues in the case as a controlling finding or
verdict. (On this point see Kintz VS.. McNeal,
| g BoSworth, 66S.)
But the record shows no such aoreemont
For oil that appears the jury was discharged
without nndlng anything which in law can be
held as verdict, and the record informs us
that the parties submitted further evidence:
that the trial was completed on the 25th of
April, 1869 zone day after the so-called YER
dict was returned into COURT, and that the
cause was on the 25th of April, s.submitteu
to the court for decision and judgment"
the verdict seems to have been treated By
counsel ana court as of no effect. 1t appears
in the transcript that the cause came on regu-
larly for trial. was tried on the 2fth and 25th
| of a pril, 1889, when the trial was COMPLETED
We cannot construe this otherwise than as a
| lrteiy true, that the trial was not completed
until the 25th day of April, 1889, the day
after the special findings were fled Certainly
the verdict on an incomplete trial is a nullty,
and should be so treated unless il is shown
that the parties gave it effect by stipulation
that it should be regarded as of some validity.
and how far IL should be so regarded.
The defendant had right to have his cause
| tried by jury. This was accorded to him
The jury was called and sworn in the case.
and then was discharged without objection
without rendering verdict. Both parties
afterwards went on to try the case, introduced
further evidence, and submitted the case for
decision and judgment.
We cannot hold otherwise than that there
was waiver of trial by jury just as effect
ual as If his consent had been given in omen
court, and entered on the minutes The min
utes show a consent by action in open court.
by proceeding with the trial, introducing fur,
ther evidence after the jury was discharged
and submitting the case for decision ard judg,
ment. Such action was inconsistent with any
demand orr desire for Jury trial, and should
be held a waiver, within the provisions OF Sec
ton 631, c. c. z.
1t is argued that the verdict was not waived
But IN our view there was no verdict and tie
counsel seems to have so regarded it. or he
would have asked for Judgment on the verdict
istJ Ief;