ON MOTIONS OPINION An appeal has been taken in this case on the judgment roll alone, and among the papers which have been certified to as constituting the judgment roll is one designated as "Special Findings of Fact by the Jury," and another document designated as "Special Verdict." There is no general verdict.
Appellant has moved this court for an order striking the document designated as "Special Findings of Fact by the Jury," and further asks us to strike from the decree of divorce certain specified parts. The motion to strike the said document designated as "Special Findings of Fact by the Jury" is on the ground that findings form no part of said judgment roll for the reason that there is no general verdict, and that special findings of fact by the jury can only be returned where a general verdict is rendered.
1. Respondent seems to concede that special findings can only be returned in aid of a general verdict, but asserts that the so-called "Special Findings of Fact by the Jury" as found in the judgment roll is in fact a special verdict; that the substance rather than the form should be looked to; and that we should disregard the fact that the jury designated the document as "Special Findings of Fact" and consider said document as a special verdict. *Page 475
Had the jury filed but one document in the case, the argument of respondent might be more persuasive. We have a separate, independent document which has been returned by the jury and designated by it as its special verdict, and to adopt respondent's theory would require this court to disregard the document so designated and replace it with an entirely different one. This would be amending the record and a disregard of the evident intention of the jury. There is no occasion for construction of interpretation. The two papers are separate and distinct, plainly indicating the intent and purpose of the jury in each instance. It may be the jury misconceived its functions and acted under the belief that it possessed the same right to file findings with a special verdict as in the case of a general verdict, for there is no other apparent tie-in between the two documents returned by it.
2. "Special findings have no force or validity as such unless they accompany a general verdict." Bancroft Code Practice and Remedies, vol. II, p. 2054, sec. 1588, note 1. "Of course, special interrogatories submitted should be disregarded in case the jury renders a special verdict." Bancroft Code Practice and Remedies, vol. II, p. 2055, sec. 1589, note 8. "If, in their discretion, they render a special verdict, and particular questions of fact have been submitted to them, the latter may be ignored. They cannot be required to find upon such questions except in case of the rendition of a general verdict. * * * A special verdict is one thing, and a special finding upon particular questions is another and entirely different thing." Pickett v. Handy, 5 Colo. App. 295, 38 P. 606, 607.
3. The filing of the so-called "Findings of Fact by the Jury" was unauthorized and they form no part of the judgment roll. Only such matters as are designated by section 8829, N.C.L. 1929, should be placed in the judgment roll, and the unauthorized "Findings of Fact by the Jury" is not one of them. Lindley Co. v. Piggly *Page 476 Wiggly Co., 54 Nev. 454, 22 P.2d 355; Harper v. Lichtenberger,59 Nev. 495, 92 P.2d 719, 98 P.2d 1069, 99 P.2d 474; Magee et al. v. Whitacre et al., 60 Nev. 202, 207, 96 P.2d 201, 106 P.2d 751.
4. Respondent argues that the said findings having been adopted by the trial court in its decree, they come within the provisions of said section 8829, N.C.L. 1929. The said findings being beyond the province of the jury to find, they have no place in the case and the trial court was without authority to adopt something which had no legal existence.
The motion to strike the "Special Findings of Fact by the Jury" is allowed.
5. The motion to strike certain portions of the decree of divorce is denied. We think that the provisions of the decree complained of should be allowed to remain to be tested on appeal as to whether, on the face of the record, they disclose such fundamental error that it can be considered in the absence of a bill of exceptions. 4 C.J.S., Appeal and Error, p. 1729, sec. 1232; 4 C.J.S., Appeal and Error, p. 1734, sec. 1239; 3 C.J. p. 1339, sec. 1476.
ON THE MERITS June 4, 1945. 159 P.2d 575. *Page 477