Petition for a re-hearing.
Opinion by
Lewis, Chief Justice.Several grounds are stated for a re-hearing.
There is no doubt but it was the. exclusive province of the District court to assess the damages in this cause, so also it was-its duty to find the facts. Civil Practice Act, Section 248.
But the judgment on the decision shall be entered accordingly; that is, in accordance with the findings. Ibid.
In giving its decisions, the facts found and conclusions of law shall be separately stated.
The decision then is the findings of law and fact, and the judgment must be in accord therewith.
Th & findings of the court upon th z facts shall be deemed a. verdict. Practice Act, Section 249.
The findings of fact, therefore, are in the nature of a spe*479¡oial verdict, and the conclusions of law are in the nature of a general verdict.
A special verdict is where the jury find the facts and leave the judgment to the court. Practice Act, Section 242.
When special findings of fact shall be inconsistent with the general verdict, the former shall control. Practice Act, Section 245.
Upon the special finding of fact In this cause, the judgment of .the District court was erroneous. The general verdict was not in accord with the fact.
The error was one of law as to the measure of damages.
All the facts were before the court below, so also, all of the facts a/r& before <this cowrt.
The findings of the District court constitute all the facts of the case.
The error insisted on here is, that upon the facts so found, the judgment should have been for $1000.
This writ of error brings the cause here for re-examination solely upon errors of law.
The findings of the District court are here by proper exceptions.
Morrow makes no complaint as to the judgment of the District court, but Willey makes special complaint and is here to have the errors corrected.
There is no question but that the court below mistook the law in the assessment of damages.
The only questions here made are whether this court can •correct this error here, and render such judgment as the District court should have rendered on the facts before it.
The same facts and all the facts in the case being before us, and if we can so do, should we so correct this judgment, or transmit the record to the District court with a mandate to enter such judgment.
Our statute provide? that the judgment complained of may be affirmed, or may be reversed or set aside in whole or in part, *480or may be modified, or a different judgment may be substituted for that complained of. Civil Practice Act, Section 449.
These provisions give to this court much discretion in the matter, and the power to modify and change the judgment seems to be ample.
In all cases wherein all of the facts are not before appellate court, the correct rule would be to remit the cause to the District court for further proceedings.
In this cause, however, all of the facts are before us.
The statute of California is in substance the same as ours, and the Supreme court of that state have construed their statute.
Instead of remanding a cause for a new trial where the judgment below is erroneous, this court will so modify it as finally to settle the controversy when the rights of the parties appear from the record to be fully ascertained. Presse vs. Cole, 1 Cal., 369.
A judgment will not be reversed for error therein which the record enables the appellate court to fully correct; the judgment will be modified and affirmed. Water Co., vs. Fluming Co., 22 Cal., 620.
The whole of the facts in this cause have been ascertained,, and the rights of the parties must be determined from these facts.
These rights are fixed by law; no new findings are necessary to enable a court to make the assessment of damages.
Were the cause remanded to the District court, the order would necessarily be to that court to enter a judgment for the viilue of the land at the time of the breach of contract by Morrow.
Such value has been found and is fully stated in the fiiidings.
The law requires no vain things to be done.
There can be no possible necessity for remanding the cause; no new trial has been asked for either in District or Supreme court.
*481ETo necessity for one is manifest.
The statement of Morrow that he can produce evidence to show that the land was worth no more than $200 at time of breach, can have no weight with us.
The value of the land was one of the issues in the District court, and its 'finding therein is conclusive.
We think this case is exactly within the rules laid down in the California cases above cited, and those rulings are correct in principle. '
The application for a re-hearing must be denied.
Taxation of costs.
Opinion by
Lewis, Chief Justice.Two questions have been presented in this cause as to the judgment and costs here.
This writ of error was prosecuted by Willey against all of the defendants, and a reversal claimed, both as to the decree dismissing the bill as against McDonald, and the judgment against Morrow. '
McDonald was brought here by Willey, and the judgment and decree of - the court below have been affirmed as in favor of McDonald, who has prevailed here as against the plaintiff in error.
. McDonald, therefore, is here entitled to the following costs to be taxed against plaintiff in error, to wit:
An attorney’s fee of $15.00; disbursement for brief, $15.00.
The,defendant, McDonald, also asks that this judgment be entered against the sureties on the bond here given by Section 438 of the Practice Act.
The object and purpose of this bond is to stay proceedings in the District court, and to secure the payment of all costs and damages, and such judgment as this court may render.
It is manifest that there is a typographical error in this section. The corresponding section in the statute of 1869, contains the word “if” at the beginning of the section.
*482No bond is necessary unless a supersedeas is required.
"We have made careful examination and conclude that we (have no authority to render such judgment against the sureties.
The judgment will be only against plaintiff in error.
All costs, not so taxed against plaintiff in error, will be taxed against the defendant, Moi’row, including brief and attorney fees.