
    VAN ABEL, Respondent, v. WEMMERING, Appellant.
    (166 N. W. 629.)
    (File No. 4223.
    Opinion filed March 8, 1918.
    Rehearing denied May 7, 1918.)
    1. Judgments- — Specific Performance, Reformation of Contract— Reversal re Specific Performance, Whether Res Judicata re Reformation — Dismissal.
    
      Where, in a suit for specific performance of a contract for sale of realty, and for reformation of the contract; in which findings wore mada both as to reformation and specific performance, the Supreme Court having reviewed the case, confining its views to phase of specific performance, and remanded the case with direction “to enter judgment on the findings,”' held, that the judgment on appeal, thus directed to be entered below, would be res judicata as against another action for specific performance, but not as to matter of reformation of the contract; that as to the latter phase, the action would stand dismissed without prejudice.
    
      2. Actions — Damages for Breach of Contract — Amendment to Secure Reformation — Former Action, Findings x’e Specific Performance, and Reformation, Tn, 'Whether Evidence in Present suit.
    Where, in a suit for reformation of a realty sale contract, and for specific performance thereof, findings were, made both as to reformation and specific performance, and thereafter, after reversal of the judgment by Supreme- Court, the original suit not having been formally dismissed, a suit for damages for breach of the- contract was begun, the complaint having been amended so as to secure, reformation of the contract, held, that the judgment and findings of trial court in the original suit were not of evidentiary force in the present suit.
    3. Trials — Error—Suit for Breach of Realty Sale Contract — Amendment to Secure Reformation — No Findings re Reformation, Money Judgment — Ex-Fox" Non-prejudicial, When?
    In a suit for damages for breach of a realty sale contract, plaintiff having amended his complaint so as to secure a reformation of the contract, and trial court having rendered a mere money judgment upon verdict, no findings or conclusions of law having been made upon question of reformation, held, that while entry of judgment without disposing of issue of reformation was erroneous, yet, as upon facts presented it is undisputed that the contract should be reformed, the error was non-prejudicial.
    •F Tx-ials — Refox'matioxx of Realty Sale Coutx’act — Mistake ixx Description — Instruction re Mistake, Effect as Finding re Refox*mation — Prejudice.
    In a suit for damages for breach of a realty sale contract, the issue of reformation of the contract by correcting a mistaken description of the land being involved through amendment of the complaint, an instruction that jury should find from the evidence that the misdescription in the contract was a mistake, in legal effect amounted to a finding that plaintiff was entitled to reformation of the contract; and trial court’s error in failing to decree such reformation was not prejudicial.
    
      Appeal from Circuit Court, Hyde County. Hon. John E. Hughes, Judge.
    Action by John Van Abel, against G. F. Wemimeriinig, for damages foiq -breach of -a realty sale contract, amcl for reformation of said contract. From a judgment for plaintiff, and from an order denying a new trial, 'defendant appeals.
    Affirmed.
    See 33 S. D. 544, 146 N. W. 697, and 36 S. D. 31, 153 N. W. 911.
    
      A. W. Wilmarth, for Appellant.
    
      M. Harry O'Brien, and P. W. Dougherty, for Respondent.
    (1) To point one of the opinion, Appellant -cited: Huntly v. Holt, 59 Gem. 102, 21 Am. St. Rpit. 71.
   GATES, J.

Reference is made to 33 S. D. 544, 146 N. W. 697, and 36 S. D. 31, 153 N. W. 911, fear an understanding of the present appeal. A judgment in am action for reformation -of a contract for the sale of lands and for specific performance thereof w'as vacated by this court.- 33 S. D. 544, 146 N. W. 697. In said opinion the effect of the decision was expressly limited to the matter of' specific performance. The judgment of this court, and- -the judgment directed by this court to be entered in the trial court, in tha't -case would be res judicata as against another action for specific performance, but would not be res judicata as to _tbe matter of the reformation- of the contract in a subsequent action. So- far as the latter phase i's concerned, the action would stand dismissed without prejudice. After the filing of ‘the remittitur in the trial court in that case 'the present action! -was begun for damages for breach of the -contract. On appeal from a judgment rendered therein the judgment wa-s reversed because there hadl been no reformation of t'he contract, the former judgment having been vacated, and .because 'the evidence wa's insufficient to sustain the findings; the insufficiency being predicalted' upon the fact that the trial court assumed that certain findings-Un- the specific performance case could be relied upon to supply proof of certain matters in this case. 36 S. D. 31, 153 N. W. 911.

Upon -a new trial plaintiff sought and obtained leave to amend his complaint so as to secure a' reformation of the contract. The action was tried by the court and a- jury. The jury returned a verdict for plaintiff, and, without having made findings of fact and conclusions of law upon- the question of reformation, the trial court rendered judgment upon the verdict which judgment is a mere money judgment, and does not touch upon the refoirmiatiioin of the contact. It appears Ithat the former action has not been formally dismissed, but that cuts od figure in finis Case. As we said in 36 S. D. 31, 153 N. W. 911, the vacation of the judgment in the 'former case placed that ease in the situation in which it was before the trial thereof. The only effect of the failure of the trial court to dismiss that action was to' leave that action still pending. The judgment and findings of the trial court in that -case were barren of evidentiary force.

Plain error therefore arises by reason of the omission of the trial court in this case to dispose -of the -issue of reformation of thle contract, but upon an examination of the record if appears beyond question that if is nonprejudieial error, because upon the facts presented .it stands undisputed that the Contract should be reformed. Such fact -is so clearly established that reasonable minds could arrive at. no other result. There is no question about it at all. Furthermore, the trial court charged the jury as follows:

“From all . the evidence in this case, gentlemen, you are directed to fin'd as a fact that the 'describing'' of the land as 'being in township 113 north instead of township' 112 north was a mistake made by Mr. Pierce in drafting the instrument.”

This in legal effect amounted to* a finding of fact that plaintiff was entitled to a reformation of the contract, and the error led’ the trial court in failing to' decree such reformation cannot be prejudicial to plaintiff. This appears to us to be a fitting situation in which to apply the rule that nonprejudieial error will mot be permitted to work a reversal of a judgment, especially in view of the lbrng-Conibinued litigation 'by the parties to this contact.

What we have 'heretofore said disposes -in a large part of matters urged in appellants 'brief. The other matters have be'en examined, and Considered and are found to be without merit.

T'he judgment and order appealed from are affirmed.  