The only complaint made on this appeal is that the court erred in entering judgment for rents and profits of the land, because the issues in relation thereto were triable by ordinary proceedings, and to a jury, unless waived. The stipulation of the parties, and the law in its absence, required that, if the equitable issue was found against defendant, judgment for the possession of the land must be entered for the plaintiff, and the judgment would carry with it a right to damage for wrongful detention, which in this case is the value of rents and profits. The only remaining question then, after settling the equitable issue, was the value of the rents and profits. It may be admitted for the purposes of the case, that, if the question involved a dispute as to facts or amount, it should have been submitted to a jury. Are we then to infer such a dispute? The pleadings fairly present such a question, but the record shows that, on the trial, evidence was taken as to the rents and profits, and the judgment of the court shows the same fact. Now, let us suppose the evidence such as to place the amount of damage beyond dispute, as that both parties testified that the value of the rents and profits was the value found by the court. In such a case there would be no question for a jury; the fact would be treated as established ; and the law would not encourage the idle form of changing the forum to conclude the trial. No part of the evidence is in the record, and we will assume, in its absence, its sufficiency to sustain the action of the court where its action is based thereon. It may be said that no complaint was made to the district court of its action, nor was there an intimation of a desire to try any question to a jury, and likely because there was none to be so tried.
The judgment is affirmed.