The defendants file objections in this court to all that part of the transcript except the judgment-roll thereof, because the statement upon appeal does not contain an assignment of errors, as required by section 371 of the Practice Act, which objection, we think, well taken, and fully sustained by the authorities cited by defendants’ counsel.
The action proper is one in the nature of ejectment, under our Code, and for the recovery of the possession of certain quartz leads or lodes.
TTpon an examination of the judgment-roll proper, we find the complaint seeks to recover from the defendants the possession of two quartz lodes, each of 1,500 feet in length and 600 feet in width; that the same was tried to a jury upon issue duly joined, and the following verdict rendered:
“We, the jury, find for the plaintiffs, and allow and find for them only fifty feet on each side of said lodes. No damages allowed.”
Upon this verdict the plaintiff moved for judgment, first, for all the property described in the complaint; second, for fifty feet on either side of said lodes; and the defendants also moved for judgment for them, notwithstanding the verdict — Won obstante veredicto.
Whereupon the court rendered the following judgment:
“ Wherefore, by virtue of the law and by reason of the premises aforesaid, and upon said verdict and the pleadings in this action, it is adjudged that the plaintiff * * * recover of the defendants * * * the possession of all those portions of the property described in the plaintiffs’ amended complaint, described *182as follows, that is to say, that the said plaintiffs recover, as aforesaid, so much of the Cannon lode claim mentioned in plaintiffs’ amended complaint as is now developed and uncovered by the discovery shaft, or otherwise, on said lode claim, in length along said lode, together with fifty feet on each side of said portion of said lode, and no more. Also, so much of the Cannon Extension lode (east) claim mentioned in said complaint, as is now developed and uncovered by the discovery shaft, or otherwise, thereon, together with fifty feet on each side of said portion of said lode, and no more. And it is further adjudged that the plaintiffs have and recover of said defendants, except defendant Arnold, their costs,” etc.
The only question necessary for us to consider is as to the authority for, and correctness of, this judgment.
The practice of moving for judgment after verdict seems to be without statutory authority or seeming necessity. If judgment be for the recovery of money only, the clerk shall render judg ment within twenty-four hours after verdict, unless the same be stayed by order of the court. In other cases the court renders judgment as of course, unless a new trial be granted or other motion filed to intercept the judgment. But however necessary or useless may be this practice of obtaining judgment, it cannot affect the determination of the question under consideration.
The verdict rendered was but a general verdict, although they found the width, of the property, and thereby less in amount than the plaintiffs claimed. This was but in accordance with the instructions of the court, and was good law.
If the verdict had been incorrect in form, the court could have corrected the informality, but not in substance.
It is true, under our Civil Practice Act, § 215, the jury might, at their discretion, have rendered a general or special verdict. A special verdict, by section 214 of our Practice Act, is such as shall present the conclusions of facts, which shall be so presented as that nothing shall remain but for the court to draw therefrom the conclusions of law. But no such verdict was ever rendered, but just such verdict as the court directed under the law, if the proof so justified, as we must presume it did. There was then nothing left for the court to do but either grant anew trial, if the *183facts so warranted, or to render a general judgment upon this general verdict. Even if this could be construed into a general verdict, all the facts essential to the rights of the parties are not pretended to be presented, and it is not competent for the court, where such repugnancy exists, to supply the same, and, with this complex kind of verdict, partly rendered by the jury, and partly by the court, render judgment therein, it would be but to supplant the court for the jury, and thus deprive a party of his constitutional rights.
It is, however, said that the complaint in this action is too defective to support the verdict, and entitle the plaintiffs to the judgment they demanded. The complaint avers title, possession, and ouster. And the presumption of law is, that every fact-necessary to justify the verdict was duly proven. And, although the complaint may have been defective by being too general, and the like, yet it seems counsel considered it sufficient to go to trial upon, the court deemed it sufficient to render a judgment upon, at least for such portion of the premises described therein as the court deemed the plaintiffs entitled to, and we deem all such defects cured by verdict.
Again, it is said that there is such a variance between-the proofs and the pleadings, that no other judgment could be rendered than was rendered by the court below. We cannot examine these proofs, as they are excluded from our consideration by sustaining the objection taken by defendants’ counsel; but, if we could, this was a matter to have taken advantage of upon trial, and cannot now be considered upon appeal to conform the judgment to the verdict, but judgment should follow the verdict until set aside by the pa/rty opposing it. And the authorities cited by plaintiffs in their original and reply brief fully sustain the view we have thus taken.
The judgment of the court below is therefore reversed, and the cause remanded.
Judgment reversed.