
    Cane & al. vs. Watson.
    Appearance of dft. and submitting to a trial, is a waiver of all objection on ground of want of service.
    If tt\e change in the verdict was such.that it might have been made at the time the verdict was rendered without the assent of the jury, it was competent to direct the alteration at the time alleged in this case.
    This Court will not disturb a judgment on account of any defect in the form of the verdict, provided the intention of the jury is unequivocal and evideut.
    Action of trespass quare clausum brought before the District Court by appeal. Plea by part of the defendants only, Cane, Hamilton & A. Carmichael, general issue, no appearance as to other defendants. Subsequently ali the defendants came and moved to dismiss tbe suit, which motion the Court overruled, and the defendants pleaded not guilty. The jury find for the plaintiff; and defendants move in arrest of judgment — and the plaintiff moves to amend the verdict and enter judgment accordingly. And it was ordered by the Court, that the verdict be amended and judgment affirmed. The defendants except to the opinion of the Court that upon the trial of this cause the Court instructed the jury as follows: “that if the plaintiff was in the actual possession of the “house notwithstanding the allegation that the house belonged to the plaintiff, it “is sufficient to enable the plaintiff to recover in this action as laid in the com“plaint:” and thereupon bring their writ of error to this Court, upon five causes of error, assigned, viz:
    
      1st. That the-original process was served on but three defendants* and jndgment rendered against all.
    
      2d. Because the judgment was illegally rendered by the magistrate against the Bells, who were not served with process.
    3d. Because the District Court could not render judgment against them, their appeal being their only remedy from the magistrate.
    4th. Because the Court erred in permitting the verdict to be amended at the time and in the manner it was amended.
    5th. Because the plaintiff has no cause of action, the alleged trespass being committed on a claim of-public lands as appears from the record.
    Roana, Henry W. Stark, Chapman and Grimes, in support of the writ ot error.
    Woods, and Thomas and Springer for dft. in error.
    Rorer Contended that judgment should have been rendered only against the three defendants who appeared originally in the Justice’s Court. The service was on three only of the defendants. .
    Grimes. A part ot the defendants only were served with process from the Justice’s Court. The Court had no right to give judgment while the motion in arrest is pending. And it erred in permitting the amendment. By the laws of Iowa verdict may be put in form. See Laws of Iowa, 370, as to service on a portion.
    The declaration states the property as belonging to the plaintiff. It is contended that this does not show actual possession.
    For the defendant it was contended
    1 st. That it was not necessary to have the process served on all the defendants, and they might come in voluntarily and make themselves defendants, which, from the record it appears, they have done.
    2d. The defendants waived all Grror by pleading the general issue, upon which there was a trial and verdict.
    3d. That the District Court had the right at any time to put the verdict of the jury in form and render judgment upon it.
    4th. Possession is at all times sufficient to sustain th e action of trespass against a wrong doer, and no title in the property is necessary.
    To the first, second and third errors in the plaintiff’s assignment, it is a sufficient answer to state that the defendants, Bells, as well as the others, were present at the trial before the magistrate and joined issue.
    As to the fourth. The verdict found the issue in substance, and it was perfectly proper for the Court to permit the verdict of the jury to be amended in point of form. 1 Whar. Big. 748 — 2 Greenleaf 37 — 1 Blac. 12 — 5 Ohio R. 513 — 3 Ohio R. 385 — 1 Mason 153— Ohio Con. R. 615.
    As to the fifth. The plaintiff had cause of action, — and although the house was situated on public land yet if the plaintiff had possession, it was sufficient to give him a cause of action against a wrong doer.
    Grimes, in reply. Process issued against all the defendants returned non ino..except as to three, Thejustice entered judgment against all. We are not bound to show they did not appear. The record must show they did appear. When the cáse came into the District Court, the Bells did not appear. The Judge decided that by their appeal they had come into Court. There were two issues. The verdict was on one issue only. The record contradicts itself, or there were two issues.
   By the Court

Mason, Ch. J.

This suit was brought up to the District Court by appealing from the judgment of a justice of the peace. Two of the defendants,-William and Samuel Bell, were not served with process. The transcript of the justice however states that the plaintiff and defendants appeared on the day set for trial. The appearance of the two Bells would have superseded the necessity of service. It is urged, however, that the word defendants in the transcript ought to be understood as referring only to those who had been duly served with process. Such, however, does not seem to have been the understanding of the justice for he afterwards states that “the defendants, Samuel Bell and William Bell, filed their bond for an appeal.”

But whether the record would justify the conclusion that these defendants appeared in the justice’s court or not, it clearly shows an appearance in the District Court. The three other defendants had pleaded the general issue: after which a motion was made to dismiss the suit. Tin’s being overruled the defendants pleaded not guilty, and issue was joined thereon. The defendants here mentioned must necessarily include the two Bells, for they were the appellants in the case. Appearing and submitting to a trial was we think a waiver of objection to all preceding irregularity.

Another objection urged is that the Court permitted the verdict of the jury to be amended at the next term after it was rendered. A motion in arrest had been made immediately after the trial, and the cause continued. The amendment of the verdict took place before the judgment was rendered. It makes no difference whether this was at the trial term or not. An amendment by the court in matter of substance would be error it made at any time. But if in mere matter of form, it vvould never be such an irregularity as could be rectified here. The District Court has control of its own records so far as to direct the form in which entries shall be made therein; but must never alter substantial facts. If therefore the change in the verdict was such as the Court might have made at the very time it was rendered without the express assent of the jury, it was perfectly competent to direct the alteration at the time alleged in this case.

This Court will not disturb a judgment on account of any defect in the form of theverdiet, provided the intention of the jury is unequivocal and evident. In this case, we think there can be no mistake as to what the jury intended in their original verdict. The plaintiff charged the defendants with the commission of a trespass. They pleaded “not guilty.” The jury found for the plaintiff. Although as was urged by counsel it is not stated as to which of the defendants they “find for the plaintiff,” the same objection might have been urged with equal force had there been a general verdict of “guilty.” It applies ito all the defendants. If therefore we would not have disturbed the judgment lor the defective verdict had the same not been amended, we certainly shall not under present circumstances.

The judgment below will therefore be affirmed.  