(dissenting). I am unable to concur in the views expressed by the majority of the court that this action is to be treated as an equitable action, and that tlie court was in error in setting aside and vacating its order of July nth requiring findings of -fact and conclusions of law and disregarding the verdict of the jury. In my judgment the action was in effect a legal action, and the issues- presented were legal issues only, and no equitable issues were involved in the case. It is true that plaintiff in his complaint sets out certain facts which might in a proper case raise equitable issues therein, but it will be noticed that in this case the plaintiff claimed 'to be the owner of the strip of land which -he alleged was in the possession of and unlawfully withheld by the defendant, and in effect he demanded judgment for the possession of that strip of land and $1,000 for the unlawful detention of the same. This was all it w.as necessary for the plaintiff to allege to entitle him to recover in the action.
The defendant in his answer, after making certain denials, admitted that the defendant claimed an interest and estate in said real property; alleged that he had been in open and notorious possession of said land for more than 30 years, keeping and cultivating the same, and that no part of the plaintiff’s cause of action accrued within 20 years; and as a counterclaim alleged ownership in fee in himself and demanded judgment that the defendant *492be declared and adjudged to be the owner of said land and that the plaintiff be forever barred, etc.
It will be observed that the defendant in effect denied the plaintiff’s ownership, pleaded the statute of limitations, and alleged as a counterclaim that he was the owner in fee of the strip of land claimed by the plaintiff. This in effect was a general denial of the ownership .of the property and right to its possession which could have been proven under a general denial. It will thus be seen that the onfy issues in the case were as to the ownership of the land, statute of limitations, and the value of the rents and profits.
It was claimed by counsel for the plaintiff that the case was tried by the court upon the theory that it was an action at law and not an action in equity, and that, in my judgment, was the true theory upon which tp try the case, .and it was clearly proper for the court to treat all the allegations in the complaint, other than plaintiff’s claim of ownership and right to possession and that defendant was unlawfully withholding the same from- the plaintiff, as surplusage that might have been stricken out on motion. The order, therefore, made by the court upon the defendant’s motion to make findings, etc., treating the case as an equitable action, was 'clearly erroneous, and in my opinion was properly vacated and set aside, and the motion of the plaintiff for leave to amend his complaint by striking out the immaterial allegations was properly granted.
In construing pleadings it is proper for the court to consider the actual issues presented therein and to disregard any immaterial and redundant matter set up in the pleadings which do not have the effect to raise a material issue in the case, and such the court seems to have properly done in the case at bar. In my opinion he gave the proper construction to the pleadings and committed no error by allowing the complaint to be amended by eliminating therefrom the immaterial and unnecessary matter contained therein, and no prejudice could have resulted to the defendant by allowing such an amendment,' as it changed no issue in the case and left the case in the precise condition it was evidently understood to be by both parties on the trial of the ac*493tion, viz., that the real issues in the case were as to whether the plaintiff or the defendant was the owner of this strip of land and as to whether or not the 20-year statute of limitations was a bare to the action, and, if the plaintiff was found to be the owner, the amount of the damages he sustained by reason of the unlawful withholding of possession by the defendant. These were the only issues involved in the action, and the fact that the plaintiff had pleaded certain other matters not necessary to be set out in this complaint would not change the case. The court therefore properly disregarded these immaterial, irrelevant, and redundant matters.
In my judgment, therefore, the order of the court permitting the plaintiff to amend the complaint, and its refusal to make findings, and its entry of judgment upon the verdict of the jury, were clearly right.