Where, in the prayer of a petition, there is a demand for both general and specific relief, that a mistake is made in the prayer for specific relief will not prevent the granting of such relief as the allegations of the petition and the evidence in the case justify under the prayer for general relief.5*

DIVISION II.-CONFORMITY TO VERDICT

§ 1256. Judgment on verdict

"When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration." 55

A judgment must be supported by the verdict and a judgment which goes beyond the verdict is erroneous.56

In a suit on a claim, part of which has been allowed, the court on verdict for defendant should enter judgment for the amount so allowed.57

Judgment on a note and mortgage may be rendered on a verdict which does not state the amount due, where the only question in dispute was their validity.58

Judgment may be rendered for plaintiff in an action to foreclose a vendor's lien, upon demurrer to defendant's evidence being sustained, without return of a verdict by the jury.59

that a plaintiff will not be given greater relief than that specifically demanded. City of Parsons v. Parsons Water Supply & Power Co., 104 Kan. 294, 178 P. 438.

In an action in which plaintiff asked only $57, and at no time asked or ob tained leave to amend, or amended his pleadings, it was error to give him judgment for $72 and costs. Kansas City, L. & S. R. Co. v. Richolson, 1 P. 138, 31 Kan. 28.

54 Missouri, K. & T. Ry. Co. v. Murphy, 90 P. 290, 75 Kan. 707. 55 Rev. Laws 1910, § 5138.

Where the court makes the caption of the verdict part of his instructions, and it appears that the jury, by striking the name of one defendant from the caption and striking "s" from word "defendants," intended to find for him, it is error to disregard such intent in entering judgment. St. Louis & S. F. R. Co. v. Williams, 55 Okl. 682, 155 P. 249.

56 Smith v. Eagle Mfg. Co., 108 P. 626, 25 Okl. 404.

57 Selzer v. Selzer, 45 Okl. 372, 145 P. 318.

ES Matthews v. McNeill, 157 P. 387, 98 Kan. 5.

59 Ames v. Milam, 53 Okl. 739, 157 P. 941.

The judgment must follow the verdict, and where the verdict is general and for a sum in gross, and the question of interest was not reserved by the court, and nothing in the record indicates that the jury omitted interest, it will be presumed that it is embraced in their finding, and the court cannot add interest to the amount found.co

1258. On special verdict

"Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered."

361

Where the general verdict was one which could properly be returned under the pleadings and evidence, there is no error in ignoring the special findings and rendering judgment thereon, in the absence of a motion for judgment on such findings.62

A judgment based on irreconcilable answers returned to special questions will be reversed.63

Where the jury especially found that defendant who cross-complained suffered certain damage, but answered question as to damages allowed in negative, defendant is entitled on such findings to judgment for amount of damage found.*

60 Wyant v. Beavers, 63 Okl. 68, 162 P. 732.

Where the verdict in an action for services did not mention interest, in entering the judgment the court could not allow interest. Carter v. Christie, 42 P. 256, 1 Kan. App. 604.

It is error to compute interest on the amount of a verdict for a period prior to the date of its rendition, and render judgment therefor, when the verdict neither includes such interest nor affords data for its computation. Southern Kansas Ry. Co. v. Showalter, 47 P. S31, 57 Kan. 681.

The jury should include in their verdict any interest found due; but where the rate of interest and the dates between which it is to be reckoned are stated in the verdict, the court can determine its amount and include it in the judgment on such verdict. Mills v. Mills, 18 P. 521, 39 Kan. 455.

61 Rev. Laws 1910, § 5139.

62 Carter v. Missouri Mining & Lumber Co., 41 P. 356, 6 Okl. 11. 63 Dunlap v. Chicago, R. I. & P. Ry. Co., 143 P. 415, 93 Kan. 50.

64 Kemper Grain Co. v. Farmers' Grain & Elevator Co. of Cunningham, 163 P. 450, 99 Kan. 712.

§ 1259. Judgment against verdict

"Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party."

97 65

65 Rev. Laws 1910, § 5140.

Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party. Whitaker v. Crowder State Bank, 110 P. 776, 26 Okl. 786.

A motion for judgment notwithstanding the verdict does not raise the question of the sufficiency of the evidence to sustain the verdict. Bank of Commerce of Sulphur v. Webster (Okl.) 172 P. 943.

Where in action on note defendant's fiduciary liability was not involved, and jury found in his favor as individual, but against him as trustee, judg ment must, under Rev. Laws 1910, § 5140, be rendered in favor of defendant, notwithstanding verdict. State v. Jackson (Okl.) 166 P. 1041.

In action for injuries on the theory that the boards of a runway were old, weak, and not properly fastened where the verdict was for plaintiff after a finding that the walk was too narrow, judgment was properly entered for defendant. Case v. Yoakum, 161 P. 642, 99 Kan. 253.

Under Rev. Laws 1910, § 5140, the trial court without special findings has no authority to render a judgment notwithstanding the verdict, unless the same is warranted by the pleadings. Barnes v. Universal Tire Protector Co., 63 Okl. 292, 165 P. 176. A motion for judgment non obstante veredicto does not present for consideration errors in the admissions of evidence. Id. A motion for judgment non obstante veredicto does not present for consideration the sufficiency of the evidence. Id.

Where defendant, in an action on a partnership dissolution agreement, pleaded a mutual mistake, and, upon evidence that plaintiff knew of the mistake, requested leave to amend by alleging a mistake on his part and fraud of plaintiff, which request was refused, it was error to render judgment against defendant notwithstanding a general verdict in his favor. Wait v. McKibben, 140 P. 860, 92 Kan. 394.

Where summons in garnishment on a judgment against A. was served on B. and issue joined under Comp. Laws 1909, § 5718, and the jury found that the property in possession of the garnishee was held by him under mortgage, and no payment or tender of the amount of the mortgage debt was made to the garnishee as required by section 4432, defendant's motion for judgment notwithstanding verdict for plaintiff should have been sustained because of such defect. Bailey v. Willoughby, 124 P. 955, 33 Okl. 194.

Where, in a section hand's action for injuries, the special findings established that his injuries resulted from an assumed risk, the court should have set aside a general verdict in his favor and rendered judgment for defendant. Metz v. Missouri Pac. Ry. Co., 135 P. 578, 90 Kan. 463.

Where, in an action for the death of plaintiff's husband from being run over by a locomotive, it appeared that the railway company, if liable, was liable on the principal of respondeat superior, it was error to render judg

Where there is no legal evidence reasonably tending to support the verdict for defendant, the overruling of plaintiff's motion for judgment, notwithstanding the verdict, is error.66

The fact that the evidence is conflicting does not preclude a motion for judgment, where the case is one in which the verdict is advisory only."7

On motion for judgment notwithstanding the verdict, when there are no findings of fact, the only question for review is on the pleadings. 68

A trial court may even after a motion for a new trial is overruled reserve for consideration the question whether judgment should be entered on the verdict of the jury."9

DIVISION III.-CONFORMITY TO FINDINGS

§ 1260. Supported by findings

A judgment is supported by the findings where no other judgment could have been rendered upon the findings, and where all the elements necessary to support the verdict are embraced in such findings.70

ment against the company on a verdict finding against the company and in favor of the defendant employé. St. Louis & S. F. R. Co. v. Williams, 55 Okl. 682, 155 P. 249.

66 Schafer v. Midland Hotel Co. (Okl.) 171 P. 337.

67 Parker v. Hamilton, 49 Okl. 693, 154 P. 65.

68 Foster v. Leftwich, 52 Okl. 28, 152 P. 583.

69 State v. Webb, 36 P. 1117, 53 Kan. 464.

70 Boynton v. Hardin, 58 P. 1007, 9 Kan. App. 166.

A petition charged that a note and mortgage were given by a husband to his wife to defraud the husband's creditors. The answer was a general denial and an avoidance, and the reply denied generally the answer. The court found that the note and mortgage were for a bona fide debt, and that plaintiff's judgment was a lien on the property, and rendered judgment against defendants for one-half the costs, restrained the payment of the note and mortgage, and ordered them sold to pay plaintiff's judgment. Held, that such judgment was erroneous. Case v. Jacobitz, 62 P. 115, 9 Kan. App. 842. In an action for assault, where the jury returned a verdict of one dollar, and by special findings allowed one dollar as punitive damages and nothing for actual damages, and the findings found none of the elements authorizing punitive damages, but did authorize an allowance of actual damages, and plaintiff was entitled to recover nominal damages, it was error to render judgment for defendant on the findings. Burnell v. Bradbury, 77 P. 85, 69 Kan. 444.

Special findings held to sustain a judgment for damages for fraud inducing a purchase of an interest in a valueless business in which one of defendants

Where special findings of a jury material to the issue are in harmony with a general verdict for plaintiff, it is error to award judgment for defendant on findings collateral to the issue."1

§ 1261. Approval of findings

Where special findings as returned are attacked as contrary to the evidence, no judgment can be rendered upon them until they are approved by the trial court.72

was interested as a partner, which fact was concealed from purchaser. Abmeyer v. German-American State Bank, 103 Kan. 356, 179 P. 368.

A contention that a judgment is not supported by special findings is not meritorious, when there are general findings which support it. Shattuck v. Board of Com'rs of Harvey County, 66 P. 1057, 63 Kan. 849.

71 Citizens' Nat. Bank v. Larabee, 67 P. 546, 64 Kan. 158. Where, in an equity suit, the court made special findings for defendants and also found generally on all issues, and some of the special findings were insufficient to support the judgment, plaintiffs having neglected to request further findings or to modify those made, the special findings will be disregarded and the general finding held to support the judgment. People's Gas Co. v. Fletcher, 105 P. 34, 81 Kan. 76, 41 L. R. A. (N. S.) 1161.

72 Swan v. Bevis Rock Salt Co., 119 P. 871, 86 Kan. 260.

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