Action by plaintiff for the recovery of possession of certain lumber and logs valued at one thousand dollars, to which it claims the right of possession, and damages for their unlawful detention, laid at five hundred dollars. Under the writ issued in the case, possession of the property involved was taken from the defendant and turned over to plaintiff. In addition to a general denial, plaintiff set up in his answer a claim for damages for the taking, in the sum of two thousand, five hundred dollars.
The reply was a general denial.
The cause was submitted to the court and jury, and the latter returned a verdict which was embodied in the judgment entered in the case, the latter as follows, after the title of the cause.
“Comes now the parties by their respective attorneys, then comes the jury heretofore impanelled to try this cause, both again announce ready to proceed with this trial of this cause, and the further trial of this cause proceeds. And the jury having heard all the evidence, instructions of the court and argument of counsel retire to consider their verdict. And now on this same day comes the jury into open court and upon their oaths return the following verdict: ‘We, the jury, find that at the time of the institution of this suit, the plaintiff was entitled to the possession of the oak lumber estimated at 25,800 feet sued for and that the same is of value of-dollars and that for the taking and *191detention tbe plaintiff is damaged in tbe snm of-dollars. And we do further find that at tbe time of tbe institution of this suit tbe defendant was entitled to tbe possession of tbe oak logs sued for and tbe same is tbe value of-dollars, and that tbe defendant has been damaged in tbe sum of $485.55. O. R. Cole,’ which verdict is by the court ordered recorded. It is therefore considered and adjudged by the court that tbe defendant have and recover of and from tbe plaintiff tbe sum of $485.55, bis damages as assessed by tbe jury, together with tbe costs of this suit and hereof have execution therefor.”
In due time plaintiff filed motion for new trial as also in arrest, both of which were overruled, exceptions saved, and appeal duly prayed for and granted and perfected to this court.
Complaint is made by tbe appellant of tbe form of tbe judgment as not following tbe verdict; of tbe verdict as not disposing of tbe issues in tbe case so far as concerns plaintiff; of tbe verdict in favor of tbe defendant, as not warranted by tbe evidence, and of that part of the judgment taxing costs of tbe suit against tbe plaintiff. It must be admitted that the judgment is defective in form, in that it should have been entered awarding or confirming in plaintiff right of possession to tbe 25,800 feet of oak lumber. If we were to reverse and remand for this, it would have to be accompanied by direction to tbe court to enter up a proper judgment on tbe verdict, and would affect tbe case no further, so far as concerns plaintiff, than does tbe present judgment. We might even dismiss tbe appeal for lack of a final judgment on plaintiff’s cause of action. Tbe party who has some substantial claim to complain of tbe form of judgment is tbe defendant, as it might well be contended by him that tbe judgment is not of such character as to bar another action against him for tbe same cause. But defendant is not complaining nor appealing, and as no substantial right of tbe plain*192tiff is involved, we decline to consider tbis clerical error in tbe rendition of tbe judgment, for that is all it is in reality, as canse either for reversal or dismissal of tbe appeal as to that part of it, even assuming that we could split up a judgment. That judgment is appeal-able, however, on another aspect, which is this: It is suggested that the petition is defective in that it fails to set up a general or special title to the logs and lumber in plaintiff. That suggestion comes from the defendant, respondent here, and is met by appellant with the concession that the petition is defective, but that the respondent cannot raise the question in this court, he not having filed a motion for a new trial or in arrest of judgment and has not appealed. The answer of the respondent to this' is that it has always been the rule in the appellate courts, even without a motion in arrest, to examine into the sufficiency of .the petition. It is sufficient to say as to all this, that even if it is true that the petition does not state a good cause of action, the defendant below, respondent here, in and by his answer, has set up a good cause of action against the plaintiff on his counterclaim and issue was joined on that and the verdict and judgment appealed from are principally on that counterclaim, and that judgment for respondent is a final judgment on which an appeal can rest, and vests this court with jurisdiction over the appeal.
An examination of the testimony offered and introduced at the trial of the case, as exhibited in the somewhat voluminous abstract, satisfies us that the result arrived at in the trial court is substantially correct. It would serve no useful purpose to go' over the testimony, the objections to it and the manifold arguments of counsel on the various questions which arose at the trial. We cannot see that they are questions, the determination of which would be important in the consideration of any other case, and unless that be so, we see no useful purpose to be subserved by ruling on *193the propositions. We pass them by without any disparagement of the learning and industry displayed by counsel in tbeir thorough discussion of the many questions presented by them. We find no error of the learned trial court in giving or refusing instructions or ruling on the admission of testimony materially affecting the plaintiff or to the manifest prejudice of its rights. It is the very common case of a dispute over the performance of a contract between the sawmill man and the lumberman, a class of cases that have been threshed out time out of mind — a case for a jury, its solution depending on the view the jury takes of the evidence. The jury had before it substantial evidence to find as they did; they are the arbitrators where the evidence is conflicting, and we see no reason to disturb their verdict.
The point made, that the costs should have been taxed against the defendant instead of against the plaintiff, is not well taken. The imposition of costs is to some extent a matter of discretion with the trial court, and while in this case it might have divided the costs under the verdict rendered, as it has seen proper to .assess them against the plaintiff, we see no reason strong enough to warrant us in interfering with its action. The judgment of the circuit court is affirmed.
All concur.