The court has a large discretion as to when interrogatories shall be requested, and may refuse to submit them if not requested before argument. Kopelke v. Kopelke, 112 Ind. 435; Glasgow v. Hobbs, 52 Ind. 239.

Objections to the submission of interrogatories should be made at the time of submission. Brooker v. Weber, 41 Ind. 426.

By "particular questions of fact," less than an issue is intended, but evidence should not be asked for instead of a fact. Manning v. Gasharie, 27 Ind. 399; Railway Co. v. Hubbard, 116 Ind. 193; Gates v. Scott, 123 Ind. 459.

Interrogatories that assume facts and ask a finding as to liability, should not be submitted. Railway Co. v. Goddard, 25 Ind. 185; Railway Co. v. Ostrander, 116 Ind. 259.

Interrogatories that go only to matters affecting the amount of damages, need not be submitted. Skillen v. Jones, 44 Ind. 136.

Proper interrogatories timely requested should be submitted to the jury. Todd v. Fenton, 66 Ind. 25; Clegg v. Waterbury, 88 Ind. 21.

The court of its own motion may submit interrogatories, and may revise those submitted by the parties. Killian v. Eigenmann, 57 Ind. 480; Nichols v. State, ex rel., 65 Ind. 512; Railway Co. v. Worley, 107 Ind. 320.

When the court can direct the verdict, interrogatories need not be submitted. Miller v. White River Tp., 101 Ind. 503.

Answers to interrogatories should be signed by the foreman, but an objection on account of a failure to sign must be made before the jury is discharged. Sage v. Brown, 34 Ind. 464; Vater v. Lewis, 36 Ind. 288.

If there is any evidence upon a question the jury must return an answer or report an inability to agree. Maxwell v. Boyne, 36 Ind. 120; Duesterberg v. State, ex rel., 116 Ind. 144.

Answers should be positive and certain either in the affirmative or negative. Hopkins v. Stanley, 43 Ind. 553; Peters v. Lane, 55 Ind. 391.

If answers to interrogatories are not proper the jury should be required to correct the same. Bowman v. Phillips, 47 Ind. 341. Rush v. Pedigo, 63 Ind. 479.

If any answer to an interrogatory would not control the general verdict there is no error in refusing to require a further answer. Railroad Co. v. Stout, 53 Ind. 143; Railroad Co. v. Hedges, 105 Ind. 398.

It is error to discharge a jury over objections before proper answers are returned to interrogatories. Peters v. Lane, 55 Ind. 391; Carpenter v. Galloway, 73 Ind. 418; Reeves v. Plough, 41 Ind. 204; Railway Co. v. Asbury, 120 Ind. 289.

Objections to answers to interrogatories should be made before the jury is discharged. McElfresh v. Guard, 32 Ind. 408; Vater v. Lewis, 36 Ind. 288; Reeves v. Plough, 41 Ind. 204; Railroad Co. v. Ostrander, 116 Ind. 259.

If no general verdict is returned the answers to interrogatories are of no effect. Eudaly v. Eudaly, 37 Ind. 440.

The jury may return that there is no evidence upon the question propounded. Railway Co. v. Worley, 107 Ind. 320.

Hypothetical questions, involving science or skill, may be withdrawn if the jury can not answer the same. Continental Co. v. Yung, 113 Ind. 159.

A finding that a party was guilty of negligence states a conclusion and not a fact. Railway Co. v. Burger, 124 Ind. 275.

If the general verdict is in proper form, a failure to answer interrogatories is not cause for a venire de novo. Railroad Co. v. Rainbolt, 99 Ind. 551. See Peters v. Lane, 55 Ind. 391; Carpenter v. Galloway, 73 Ind. 418.

556. (547.) Special controls general.-390. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.

Special findings only control the general verdict when both can not stand, and when they are so antagonistic that they can not be reconciled by evidence admissible under the issues. Amidon v. Gaff, 24 Ind. 128; Ridgeway v. Dearinger, 42 Ind. 157; Higgins . Kendall, 73 Ind. 522; Day v. Henry, 104 Ind. 324; Redelsheimer v. Miller, 107 Ind. 485; Porter v. Waltz, 108 Ind. 40; Railroad Co. v. Lewis, 119 Ind. 218; Lockwood v. Rose, 125 Ind. 588; Rogers v. Leyden, 127 Ind. 50; Shoner v. Pennsylvania Co., 130 Ind. 170.

When answers to interrogatories exclude every conclusion authorizing a recovery by the party who has the general verdict, judgment should be entered on such answers. Snyder v. Robinson, 35 Ind. 311; Wisler v. Holderman, 40 Ind. 106; Nebeker v. Cutsinger, 48 Ind. 436; Rice v. City, 108 Ind. 7.

Every possible presumption in favor of the correctness of the general verdict will be indulged by the supreme court. Ridgeway v. Dearinger, 42 Ind. 157; Railroad Co. v. Stout, 53 Ind. 143; Byram v. Galbraith, 75 Ind. 134.

Uncertain, indefinite and contradictory answers to interrogatories will not control the general verdict. Comer v. Himes, 49 Ind. 482; Scheible v. Law, 65 Ind. 332; Railroad Co. v. McAnnally, 98 Ind. 412; Sanders v. Weelburg, 107 Ind. 266; Kirkpatrick t. Reeves, 121 Ind. 280; Gates v. Scott, 123 Ind. 459.

Parties must move for judgment upon the special findings. Railway Co. v. Craft, 62 Ind. 395.

557. (548.) Money verdict.-391. In actions for the recovery of money, the jury must assess the amount of the recovery.

If the verdict gives data upon which a certain amount can be arrived at it is sufficient. Gaff v. Hutchinson, 38 Ind. 341; Thames Co. v. Beville, 100 Ind. 309.

This section is applicable to special verdicts, and the amount of recovery must be assessed. Wainright v. Burroughs, 1 App. 393.

558. (549.) Verdict in replevin.-392. In actions for the recovery of specific personal property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property.

If the plaintiff has possession of the property, a general verdict for the defendant will not authorize a judgment in his favor for a return of the property. Tardy v. Howard, 12 Ind. 404; McKeal v. Freeman, 25 Ind. 151; Conner v. Comstock, 17 Ind. 90. A general verdict in favor of the defendant shows that the plaintiff unlawfully took the property from the defendant. Wheat v. Catterlin, 23 Ind. 85; Whitney v. Lehmer, 26 Ind. 503.

If the record does not show who has possession of the property a general verdict for the defendant is void. McKeal v. Freeman, 25 Ind. 151.

A general verdict for the defendant is a finding in his favor on all the issues. Baldwine. Burrows, 95 Ind. 81.

In actions of replevin appealed from justices of the peace, a verdict in favor of the defendant should be merely that the property be returned to him. Burket v. Pheister, 114 Ind. 503; Van Meter v. Barnett, 119 Ind. 35.

A general verdict in favor of the plaintiff, is a finding that he is the owner of and entitled to the possession of the property. Rowan v. Tedgue, 24 Ind. 304; Crocker v. Hoffman, 48 Ind. 207; Payne v. June, 92 Ind. 252. Van Gundy v. Carrigan, 4 App. 333. If the finding is in favor of the same party as to all the property, the property need not be described in the verdict. Anderson v. Lane, 32 Ind. 102.

As to what are defective verdicts, see Keller v. Boatman, 49 Ind. 104; Ridenour v. Beekman, 68 Ind. 236.

A verdict is not necessarily defective because in two parts. Mitchell v. Burch, 36 Ind. 529.

If a verdict is in favor of a party for only a portion of the property, such portion should be designated. Dowell v. Richardson, 10 Ind. 573.

559. (550.) Jury, how waived.-393. The trial by jury may be waived by the parties, in all actions, in the following manner: First. By failing to appear at the trial.

A failure to appear waives a jury. Indianapolis, etc., Co. v. Caven, 53 Ind. 258; Love v. Hall, 76 Ind. 326.

Second. By a written consent in person or by attorney, filed with the clerk.

Third. By oral consent in open court, entered on the record.

Oral consent may be by acts as well as words. Hauser v. Roth, 37 Ind. 89. Consenting to a reference to a referee waives a jury trial. Goodwin v. Hedrick, 24 Ind. 121.

A waiver of jury trial can only be made in the mode specified by statute. Kent, 11 Ind. 80.

Shaw .

Suffering a default does not waive a trial by jury. Briggs v. Sneghan, 45 Ind. 14.

560. (551.) Special finding by court.-394. Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision. of the court upon the questions of law involved in the trial; in which case the court shall first state the facts in writing, and then the conclusions of law upon them, and judgment shall be entered accordingly. And whenever any issue of law or fact is submitted to the court for trial, and the judge shall take the same under advisement, the judge shall not, except in case of severe illness of himself or family, hold the same under advisement for more than sixty days; and, if the court wherein said issues arose be not then in session, he shall file his determination therein, in writing, with the papers in the case.

A finding by the court not made at the request of either or any of the parties is not a special finding. Northcutt v. Buckles, 60 Ind. 577; Caress v. Foster, 62 Ind. 145; Conner v. Town, 112 Ind. 517; Sheets v. Bray, 125 Ind. 33; Jacobs v. State, 127 Ind. 77. A request for a special finding, made after the court has commenced to announce its judgment, is too late. Moore v. Barnett, 17 Ind. 349.

A request for a special finding must be made at or before the trial commences. Hartlep v. Cole, 120 Ind. 247.

The request need not state that it is desired to except to the conclusions of law. Western Union Co. v. Trissal, 98 Ind. 566.

The request should be shown by an order-book entry, a bill of exceptions or the finding. Smith v. Uhler, 99 Ind. 140; Bodkin v. Merit, 102 Ind. 293.

Each party must make his own request, and one party can not object because the request of the other was not complied with. Bingham v. Stage, 123 Ind. 281.

If the record shows a request by both parties for a finding, and also contains a special finding, it will be presumed to have been properly made. Trentman v. Eldridge, 98 Ind. 525.

The finding must be signed by the judge and filed. Peoria Co. v. Walser, 22 Ind. 73; Roberts v. Smith, 34 Ind. 550; Conwell v. Clifford, 45 Ind. 392; Service v. Gambrel, 110 Ind. 349; Branch v. Faust, 115 Ind. 464; McCray v. Humes. 116 Ind. 103. The facts should be found and stated, and not the evidence. Davis v. Franklin, 25 Ind. 407; Montmorency Co. v. Rock, 41 Ind. 263; Cruzan v. Smith, 41 Ind. 288; Kealing v. Vansickle, 74 Ind. 529; Smith v. Goodwin, 86 Ind. 300; Perkins v. Hayward,

124 Ind. 445.

Fraud should be found as a fact, and the finding should not state the evidence of fraud. Farmers', etc., Co. v. Canada, etc., Co., 127 Ind. 250.

The facts found should be applicable to the issues. Boardman v. Griffin, 52 Ind. 101; Thomas v. Dale, 86 Ind. 435; Brown v. Will, 103 Ind. 71.

Facts in issue not found are considered as not having been proven. Vannoy v. Duprez, 72 Ind. 26; Hunt v. Blanton, 89 Ind. 38; Dodge v. Pope, 93 Ind. 480; Quill v. Gallivan, 108 Ind. 235; Stone v. Brown, 116 Ind. 78.

The statement of conclusions of law should embrace matters of law only. Kealing v. Vansickle, 74 Ind. 529.

The only way of testing the correctness of a special finding is by excepting to the conclusions of law. City v. Wright, 25 Ind. 512; Cruzan v. Smith, 41 Ind. 288; Rose v. Duncan, 43 Ind. 512.

If conclusions of law are not stated, no exceptions can be taken. Smith v. Jeffries, 25 Ind. 376; Grimes v. Duzan, 32 Ind. 361.

An exception to conclusions of law may be taken by an entry of the same after judgment. Western Union Co. v. Trissal, 98 Ind. 566.

If the exceptions are taken at the earliest practicable time after the decision, and before other steps are taken, the exceptions will be in time. Helms v. Wagner, 102 Ind. 385; Dickson v. Rose, 87 Ind. 103.

Exceptions must be taken at the time the decision is made, and before a motion for a new trial. Hall v. Louth, 109 Ind. 315; Smith v. McKean, 99 Ind. 101.

A request for a new trial because the decision is contrary to law, is not an exception to the conclusions of law. Bundy v. McClarnon, 118 Ind. 165.

An exception to conclusions of law does not prevent a motion for a new trial. Robinson v. Snyder, 74 Ind. 110; Dodge v. Pope, 93 Ind. 480.

An exception to conclusions of law admits the correctness of the finding of facts. Hartman v. Aveline, 63 Ind. 344; Robinson v. Snyder, 74 Ind. 110; Helms v. Wagner, 102 Ind. 385; Wynn v. Troy, 109 Ind. 250.

If the facts are not correctly found the remedy is by a motion for a new trial. Montmorency Co. v. Rock, 41 Ind. 263; Robinson v. Snyder, 74 Ind. 110; Crawford v. Powwell, 101 Ind. 421; Bartley v. Phillips, 114 Ind. 189; Sharp v. Malia, 124 Ind. 407.

When a special finding is defective in matter of form or contents, the remedy is by a motion for a venire de novo. Kealing v. Vansickle, 74 Ind. 529; Parker v. Hubble, 75 Ind. 580; Cottrell v. Nixon, 109 Ind. 378; Hall v. Louth, 109 Ind. 494.

A motion to strike out parts of a special finding is not proper. Sharp v. Malia, 124 Ind. 407. See Knox v. Trafalet, 94 Ind. 346.

When a special finding is properly made and filed it becomes a part of the record. Wilson v. Buell, 117 Ind. 315; Secor v. Souder, 95 Ind. 95; Matthews v. Goodrich, 102 Ind. 557.

After a special finding is entered of record it can not be changed by the court. Clark v. State, ex rel., 125 Ind. 1.

An exception to a finding of facts raises no question. Gardner v. Case, 111 Ind. 494. A finding may be made more than sixty days after the trial. Jones v. Swift, 94 Ind. 516; Smith v. Uhler, 99 Ind. 140.

561. (552.) Rules of trial.-425. The provisions of this code respecting trials by jury apply, so far as they are applicable, to trials by the court.

Errors of law occurring at the trial must be excepted to below, and distinctly pointed out in the motion for a new trial, or they can not be noticed on appeal. Galvin v. State, 56 Ind. 51; Mason v. Moulden, 58 Ind. 1; Taylor v. Shelkett, 66 Ind. 927.

The supreme court will not grant a new trial merely because of the weakness of the evidence in support of the verdict. York v. Webster, 66 Ind. 50.

A verdict will not be set aside in tort as too large, unless excessive at first blush. Town v. Freeman, 66 Ind. 255; Whistler v. Teague, 66 Ind. 565.

In order to make an objection to evidence available, it must be made on the trial, exception taken, and it must then be properly assigned as a reason for new trial below. Owen v. Phillips, 73 Ind. 284.

SEC.

ARTICLE 21.-TRIAL BY AGREED CASE.

562. Agreed case-Affidavit. 563. Record.

SEC.

564. Judgment, how enforced-Costs.

562. (553.) Agreed case-Affidavit.-456. Parties shall have the right in all cases, either with or without process, by agreement to that effect, to submit any matter of controversy between them to any court that would otherwise have jurisdiction of such cause, upon an agreed statement of the facts, to be made out and signed by the parties; but it must appear by affidavit that the controversy is real and the proceedings in good faith, to determine the rights of the parties; whereupon the court shall proceed to try the same, and render judgment as in other cases.

Parties may submit any matter in dispute to a court of competent jurisdiction, but the necessary affidavit must be filed to confer jurisdiction. Sharpe v. Sharpe, 27 Ind. 507; Manchester v. Dodge, 57 Ind. 584; Godfrey v. Wilson, 70 Ind. 50; Myers v. Lawyer, 99 Ind. 237.

Pleadings are not required, and if filed should be disregarded. Warrick Ass'n v. Houghland, 90 Ind. 115; Day v. Day, 100 Ind. 460.

Where pleadings are filed and an agreed statement of facts, it is not an agreed case under this section. Penn. Co. v. Niblack, 99 Ind. 149.

If both parties treat the case as an agreed case, the same will be so regarded by the supreme court. Booth v. Cottingham, 126 Ind. 431.

One party may make the affidavit required by statute. Booth v. Cottingham, 126 Ind. 431.

The supreme court will decide upon the agreed facts without regard to the finding of the lower court. Warrick Ass'n v. Houghland, 90 Ind. 115; Penn. Co. v. Niblack, 99 Ind. 149; Day v. Day, 100 Ind. 460.

A motion for a new trial is not necessary in order to have the judgment reviewed, but an exception to the decision must be taken. Fisher v. Purdue, 48 Ind. 323; State, ex rel., v. Board, 66 Ind. 216.

The state is bound by an agreed case when consented to by the proper officers. State, ex rel., v. Porter, 86 Ind. 404.

This section is not applicable to claims against decedents' estates. Henes. Henes, 5 App. 100.

563. (554.) Record.-457. The statement of the case, the submission, and the judgment shall constitute the record.

Bills of exceptions are not necessary. Citizens Co. v. Harris, 108 Ind. 392.