
    REAMS v. McALPINE.
    (Third Division. Valdez.
    December 3, 1903.)
    1. New Trial — Special Findings — -Failure to Find — Objection— Necessity.
    Where a jury to whom special findings are submitted, with forms of a general verdict, return a general verdict for plaintiff and certain of the special findings in line therewith, and the defendant’s attorneys being present do not ask to have the jury sent back to complete the special findings, nor object to the findings or verdict made, nor to the discharge of the jury, held a waiver, and not a ground for a new trial.
    [Ed. Note. — For cases in point, see vol. 37, Gent. Dig. New Trial, § 149.]
    2. Same — Verdict Contrary to Evidence.
    Where there is evidence in favor of a verdict, and no motion to instruct for the defendant, a verdict for plaintiff will be sustained, though the court upon the same evidence would have found for the defendant.
    [Ed. Note. — For cases in point, see vol. 37, Cent. Dig. New Trial, § 144.]
    Leedy & Kelsey and Edmund Smith, for plaintiff.
    Goodell & Edwards, for defendant.
   WICKERSHAM, District Judge.

Special findings were submitted to the jury in this case, some of which they answered, and others were returned without answer. Two forms of general verdict were also submitted. The jury returned a general verdict for the plaintiff. The special findings returned supported the general verdict. The defendant’s attorneys were present when the verdict was returned, but neither asked to have the jury retired to complete the findings, nor objected thereto, nor objected to the discharge-of the jury without completed findings. Such nonaction was a waiver of defendant’s right to have the special findings made. Mack v. Leedle (Iowa) 42 N. W. 636; McCormack v. Philips (Dak.) 34 N. W. 58. The evidence before the jury was meager on some material points, and if the court had been the jury, the verdict would have been for the defendant; but there was some evidence in support of each finding, as well as the general verdict. There was no motion to instruct the jury for defendant. With defendant’s consent, the case was submitted to the jury, and the general verdict must be sustained. The motion for new trial is denied upon ali grounds.  