delivered the opinion of the court.
This is a petitory action. The defendants are appellants from the judgment, which decrees the land in contest, to belong to the plaintiff. The citation of appeal was served on the latter, who has brought up the transcript of the record, the *59defendants and appellants having neglected to file it. He prays for an amendment of the judgment, in that part of it, which allows the defendants the value of their improvements, and asks this court to declare him entitled to the fruits and rents of the land, and that the case may be remanded to ascertain their value.
The appellee may ask for an amendment of his judgment, on the day preceding the hearing of the case, or at any time before it is called for trial. The circumstance of the hearing and trial coming on soon afterwards, without opposition, cannot deprive the appellee of his right to the amendment, asked for in due time. The allowance made by the jury to the defendants, for their improvements, show they were considered as possessory in good faith; and consequently llie plaintiff is not entitled to the fruits and revenues of the land. When on an attentive examination of the evidence, it does not warrant the court to interfere with the verdict, the case will not be remanded.The defendants contended, that the. prayer for the amendment of the judgment ought to be disregarded, as it was filed on the day preceding the hearing of the cause, and consequently, not three days before the day fixed for the trial.
The case was not fixed for trial on any particular day. On the first day of the present term, the court informed the bar that it would, on the following day, hear such cases which might be ready to be submitted, and take up, on the next day thereafter, the causes in the order in which they stood on the docket, and so continue through, until all the cases were called and disposed of; which was assented to by the bar.
As the amendment was asked for, at a time when the case was not yet set down for trial on any particular day, the appellee was in time. The circumstance of the hearing and trial of the case, coming on soon afterwards without any opposition, cannot deprive him of his right to the amendment, asked for in due time.
On the merits, the allowance made by the jury to the defendants, for their improvements, show they were considered as possessors in good faith. We have attentively examined the evidence, and it does not appear to us, that any part of it would justify our interference with the verdict.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.