
    James C. Story, appellee, v. Frank Sramek, appellant.
    Filed April 19, 1922.
    No. 22078.
    Trial: Special Findings: Power oe Court. “When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.” Rev. St. 1913, sec. 7859. However, where, the jury have been discharged and the special finding is inconsistent with the general verdict, it is error for the court to vacate and set aside the special finding and enter judgment upon the general verdict.
    Appeal from the district court for Hitchcock county: Charles E. Eldred, Judge.
    
      Reversed.
    
    
      Walter D. James and Lambe <£ Butler, for appellant.
    . J. F. Ratcliff e and Stewart, Perry & Stewart, contra.
    
    Heard before Morrissey, C. J., Letton, Aldrich and Flansburg, JJ.
   Aldrich, J.

In this cause of action, which is one at law, defendant is alleged to have agreed to put plaintiff in possession of certain real estate and the growing crops thereon on March 1, 1919. Defendant is alleged to have failed to keep the terms of said contract on his part. Tlaintiff brings this action to recover damages for the breach thereof. The jury in its consideration of this matter brought in a verdict for the plaintiff in the sum of $1,240.86. The court submitted two interrogatories, which were answered by the jury as follows: (1) What do you find was the value on March 1, 19Í9, of the crop of wheat on the land? Answer, $900. (2) What do you find was the value of possession of the land on March 1, 1919, without the wheat? Answer, nothing. Thereupon the plaintiff moved the court to vacate and set aside the special findings. This motion the court sustained. The defendant’s motion for a new trial was overruled and judgment was entered on the general verdict for $1,240.86, and from this judgment appeal is taken.

Now the question is: Did the court commit reversible error when it set aside these special interrogatories and entered judgment on the general verdict? This presents a fairly easy question for our consideration.

An examination of section 7859, Rev. St. 1919, shows that what the court did in this matter in sustaining the motion of plaintiff is diametrically opposed to the provisions of the statute. That action of itself entitles defendant to a new trial. This theory of the case is upheld in the case of Culbertson Irrigating & Water Power Co. v. Wander, 51 Neb. 539. The third paragraph of the syllabus meets the law question precisely -as we have it in the instant case and is decisive of the situation here. It does not matter what citations there are on this point, they do not or cannot overrule the section of the statute which was enacted to afford relief for this situation when it would arise in the course of litigation, and it is this section of the statute which is decisive of this case under the facts. The plain remedy in this case, in our opinion, when such an inconsistency between the general verdict and the special findings exists, is to. grant a new trial. The issue in this case is: Can. a trial court vacate special - findings of the jury and then enter up judgment upon the general verdict? This is what led the court to commit reversible error. Stevens v. City of Logansport, 76 Ind. 498. That case was cited with approval in Kafka v. Union Stock Yards Co., 78 Neb. 140. These cases are entirely consistent with the provisions of the statute.

Under the facts and evidence as submitted, we must reverse this case and remand it for further disposition, for the reason that the court accepted a verdict brought about by violation of the provisions of section 7859, Rev. St. 1918.

Reversed and remanded.  