Snyder v. Utah Construction Co. , 55 Idaho 31 ( 1934 )

The conclusion that the appeal must be dismissed is correct, but I am not ready to decide that an order granting a motion to vacate a judgment and for judgment notwithstanding the verdict is not appealable, for it is not clear to my mind that it is not a special order made after final judgment within the meaning of I. C. A., section 11-201. Our court has not heretofore passed on this question. Such a motion resembles one made to procure an order setting aside a judgment, and we have held orders disposing of such motions to be appealable. (Oliver v. Kootenai County, 13 Idaho 281, 90 P. 107; Shumakev. Shumake, 17 Idaho 649, 107 P. 42; Duffield v. Ohnewein,32 Idaho 732, 187 P. 541; Central Deep Creek Orchard Co. v. C. C.Taft Co., 34 Idaho 458, 202 P. 1062.)

If an order granting a motion to vacate a judgment and for judgment notwithstanding the verdict is appealable, it may not be reviewed on appeal from the last-mentioned judgment (I. C. A., sec. 11-219), and, in the event such judgment is reversed, the reversal would not have the effect of reinstating the judgment on the verdict.

In this case it is not necessary that we decide whether this is an appealable order for, even if it is, the notice of appeal was filed more than sixty days after the entry of the order, and was too late. (I. C. A., sec. 11-201, subsec. 2, and sec.11-202.)

Petition for rehearing denied.