Jayne, Proctor and Schettino. The opinion of the court was delivered by Jayne, S.j.a.d.
A mere sketch of the significant characteristics of this litigation will adequately supply the background of the points debated and serve to accelerate the announcement of our conclusions.
The plaintiffs and the defendants are the owners respectively of adjacent parcels of land situate on the southerly side of St. George Avenue, in Linden. The plaintiffs complained that the defendants were depriving them of the use of a designated portion of their land and sought a judgment against the defendants for the possession of the portion alleged by them to be unlawfully occupied by the defendants together with damages for the loss of mesne profits.
The defendants by their answer acknowledged their occupancy of the land and their refusal to surrender its possession and averred that they had acquired title thereto by adverse possession. They requested that their "rights and interests be adjudged and determined." The pretrial order embodies certain stipulations by counsel but fails to include any statement of the issue.
At the conclusion of the trial on March 7, 1952, the jury rendered a verdict of "no cause of action" in favor of the
defendants. On March 10, 1952, a judgment of no cause of action was entered by the clerk on the verdict of the jury pursuant to Rule 3:58. On March 11, 1952, application was made on behalf of the plaintiffs for a new trial which was denied by the trial judge on March 14, 1952. On March 15, 1952, the trial judge made an order directing that "judgment final be and the same is hereby entered in favor of defendants, Lanislaus Mikos, et al , against the plaintiffs, Irving Lampert, et al , for the possession of the lands and premises mentioned and described in the answer filed in the above-stated action * * *." By an order dated March 26, 1952, the former judgment entered on March 10, 1952, was vacated.
In the prosecution of this appeal the plaintiffs contend that the verdict rendered by the jury did not warrant the final judgment awarding to the defendants the possession of the land described in the answer and that the verdict itself was contrary to the weight of the evidence.
An explanation for the vacation of the initial judgment and for the substitution of the present one is discernible in the record before us. The defendants chose to describe in their answer a parcel of land which included the parcel designated in the plaintiff's complaint and to aver that the defendants had acquired the right to it by adverse possession with the accompanying request that their interest therein "be adjudged and determined."
Assuredly it would have been more perspicacious to have filed a counterclaim as now privileged. Rule 3:74-8. But where a party has mistakenly designated a defense as a counterclaim or conversely a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. Rule 3:8-3.
Indeed, our modern practice is even more liberal for where issues which are not raised by the pleadings are tried by consent or without objection of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings may be made,
even after judgment, to cause them to conform to the evidence. However, the failure so to amend does not affect the result of the trial of those issues. Rule 3:15-2; cf. MacPherson v. ...