delivered the opinion of the court.
The plaintiff is appellant from a judgment which rejects his claim for damages and reparation, on account of the defendant’s building on his wall so as to crush and break it, and stopping up his chimneys, and opening windows, from which water and filth are thrown on to his house and into his yard. He alleges, that he has amicably demanded from the defendant to close up his windows and openings in his wall, and to run up the flues of petitioner’s chimneys, and to indemnify him for breaking his wall.
The defendant denies that he caused the injury complained of, and expressly avers that the plaintiff forbid his chimneys and wall to be run up. He denies having constructed windows or left openings in the common wall, and that they are in his own property, and constructed in the manner he had a right to do. He also avers, that if any damages have been caused to the plaintiff, they have been settled in a suit between them, which he pleads as res judicata.
' The plaintiff, at the trial, discontinued so much of his demand as relates to the nuisance .from the windows and *321stopping his chimneys, and prosecutes suit for the injury done to his walls, and especially the back buildings.
Where it appears from the record,that complete justice has not been done between the parties, and the trial being by jury, this court wilí not render final judgment, but remand the case for a new trial.There was a verdict and judgment for the defendant, and the plaintiff appealed.
From a careful examination of the evidence in the record, it does not appear to us that complete justice has been done, and, as the case was tried by a jury, we do not feel authorised to render a final judgment, but think that justice requires it should be remanded for a new trial.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; the verdict set aside ; and it is further ordered and decreed, that this case be remanded for further proceedings according to law, the defendant and appellee paying the costs of the appeal.