
    WILSON, Appellant, v. FUNKHOUSER, Respondent.
    (163 N. W. 1071.)
    (File No. 4029.
    Opinion filed August 23, 1917.)
    1. Claim and. Delivery — Verdict Ignoring Certain Property — Judgment Therefor by Consent to Avoid New Trial — Prejudice.
    Where, in claim and delivery,' the verdict was silent concerning certain other property than that covered thereby, trial court ruled that new trial should he granted, unless defendant would consent to entry of judgment therefor, whereupon ■ 'by such consent amended judgment was- entered accordingly, held, on appeal from order denying new trial, that no prejudice resulted to defendant from such irregularities as may have occurred.
    2. Appeals — Claim and Delivery — Damages for Delay on Appeal— Rule.
    Where defendant, against whom judgment in claim and delivery was entered by amendment of original judgment by including therein certain property not embraced in the verdict, which amendment was made with defendant’s consent as an alternative to granting a new trial, and he appealed from order denying new trial, the Supreme Court will, on affirming the judgment and order, award respondent damages for delay in 10 per cent of the amount of amended judgment; Court being of opinion its discretion in that regard should he ex-ereised.
    Appeal from Circuit Court, Edmunds County. Hon. Joseph H. BoWum, Judge.
    Action by David B. Wilson, against H. M. Funkhouser, in claim- and delivery. From- an amended judgment, and from an order denying a new trial, plaintiff appeals.
    Affirmed, with additional award of damages for delay.
    
      
      Julius Skatwg, for Appellant.
    
      Frank Turner, for Respondent.
   GATES, P. J..

Action for the possession of personal property between the plaintiff, landlord, and the defendant, ■ tenant. The property, live stock, was taken by plaintiff in claim and delivery proceedings. The jury found for the defendant as to two colts, valued at $100, and as to a special property in certain other live stock, and found the value of such special property to be $94. Judgment was entered in favor of defendant for $194 and costs. The verdict was silent as to certain other property taken by plaintiff. Upon plaintiff’s motion for a new trial, the trial court ruled that a new trial should be granted, unless defendant would consent to the entry of judgment -in favor of plaintiff for the property other than that described in the verdict, and for the awarding of costs to plaintiff, instead of to defendant. Defendant filed such consent, and an amended judgment was entered accordingly. Therefrom, and from an order denying a new trial, plaintiff appeals. Whatever irregularity there may have been in the verdict, and1 in the action of the trial court in rendering the amended judgment, no prejudice resulted to plaintiff therefrom. Other errors assigned are without merit. The judgment and order appealed from are affirmed, and in addition thereto the respondent is awarded damages for delay in the sum of $13.80; that being 10 per cent, of the amount of the amended judgment, and this being a case where the court is of the opinion that its discretion in that regard should be exercised.  