Upon what view of the case the court proceeded in rendering judgment for appellees, notwithstanding the verdict was in favor of appellant, is not shown by the record. If, as urged in the brief of counsel, it was upon the idea that after the appellees’ exceptions were sustained and the minor plaintiffs dismissed, that there remained no cause of action in behalf of appellant, that position is not maintainable.
While the petition and amendments seemed to have been framed especially with the view of securing some relief for the minor plaintiffs, still excluding from consideration all the allegations relating to them, there is a cause of action in behalf of appellant set up in the petition and amendments.
It is alleged that the decree divesting all right and title to1 the land out of appellant was based upon an agreement entered into by him at a time when he was so far insane as to incapacitate him from contracting, and that this mental incapacity existed at the time the decree was made. There is a special prayer in the original petition that the decree be vacated and that the agreement be annulled. Eliminating all the allegations and prayers specially relating to the minor plaintiffs — and this was the effect of the ruling of the court sustaining appellees’ exceptions — these two issues were presented by the appellant’s petition and amendments:
First, that he was non compos mentis at the time the agreement was executed.
Second, that he was laboring under that mental disability at the time the decree was entered.
However, the court by instruction submitted to the jury the first issue only, and upon that the jury found that appellant was insane at the time the agreement was executed.
Appellant contends that, upon this finding, the court should have rendered judgment in his favor setting aside and vacating the former decree; while .appellees contend that as the jury did not find that appellant was insane at the time the decree was made and entered, therefore the court correctly rendered judgment in favor of appellees confirming the former decree.
We can agree to neither of these propositions. To have authorized the court to vacate the former decree, the appellant’s insanity or mental disorder should have been declared by the verdict of the *332jury, both at the time of the execution of the agreement and the rendition of the judgment. There is no statement of facts in the record. The court, however, concluded that there was sufficient evidence to require the first issue to be submitted to the jury; that being true, the presumption that this mental disorder would continue for three days, would require the court to submit to the jury the second issue. But having failed to do so, the court could not render a judgment upon that presumption, which was but evidence of a fact that the jury should pass upon and determine.
On the other hand, having failed to submit the case made by the pleadings and evidence, and especially when the jury had found for appellant to the extent the case was submitted, the court would not be authorized in rendering judgment against appellant oconfirming the former decree.
The practice of rendering judgment non ohstcmte veredicto is not to be encouraged by the court, or to be extended to cases not heretofore embraced within the rule. The class of cases in which that rule has heretofore been applied, is where the defendant has admitted or confessed the plaintiff’s action, and has set up some matter by way of avoidance that in law constitutes no defense, and upon which the jury has found for the defendant. In such case the plaintiff’s cause stands confessed, and therefore requires no evidence to establish it. Then the court determines as a matter of law that the matter set up in defense constitutes no obstacle to a recovery by the plaintiff upon the admitted cause of action, and renders judgment for the plaintiff notwithstanding the verdict.
It will be observed that in the application of that rule the court does not invade the province of the jury, in that there is no weighing of testimony or passing upon the credibility of witnesses. But in the case before us, the court in rendering the judgment confirming the decree, notwithstanding the verdict, must necessarily have assumed the province of the jury, and determined from the evidence that the appellees were entitled to that affirmative relief.
"When the pleadings of the party in whose behalf the verdict is rendered is not sufficient to sustain the finding, the judgment ought to be arrested. So, also, where the evidence is not sufficient to sustain the verdict, the court has full power to remedy the wrong by granting a new trial.
It is clear that the court erred in assuming to determine the case upon its merits, and in rendering a judgment concluding the-rights of appellant, notwithstanding the verdict was in his favor.
The appellees’ exceptions to appellant’s petition and amendments *333thereto were properly sustained. The minor plaintiffs had no interest in the subject matter of the suit, and were improperly joined as parties.
If, as alleged, appellant was non compos mentís at the time the agreement was executed and the decree was rendered, then he would, in the absence of evidence showing a confirmation or something of' that kind, be entitled to have the agreement annulled and the decree vacated, and to have a just and fair partition made of the property between the co-owners. But the minors have no interest in the property; the obligation of parent and natural guardian rests upon appellant, to maintain and educate the minor children.
We think that the judgment ought to be reversed and the cause be remanded for a new trial.
Reversed and remanded,
[Opinion delivered June 13, 1882.]