Olson v. Ottertail Power Co. , 65 N.D. 46 ( 1934 )

This case comes to us on an appeal presented by the plaintiff. The action is based upon damages alleged to have resulted from negligent acts of the defendants. A trial was had before the court and a jury, resulting in a verdict in plaintiff's favor. At the close of the plaintiff's case, and again at the close of the entire case, defendants made a motion for a directed verdict, upon the grounds: that there is no evidence that the defendants proximately caused injury and loss to the plaintiff; that the evidence proves contributory negligence; and that there is no evidence in the case supporting any proper measure of damages.

On November 16, 1931, and two days after the verdict was returned, defendants made an application to stay execution for the purpose of presenting a motion for judgment notwithstanding the verdict. Thereupon, the trial court issued an order, staying all further proceedings, except entry of judgment, until January 31, 1932.

The record also shows that on November 23, 1931, the trial court made its order directing that judgment be entered on the verdict of the jury, and on November 27, 1931, judgment was entered for damages and costs against the defendants.

Thereafter and on December 21, 1931, attorneys for the defendants gave notice of a motion for judgment notwithstanding the verdict, which notice, other than the formal parts, reads as follows:

"Please take notice That on the 5th day of January, 1932, at 10:00 A.M. of said day, at the Court's Chambers, in the Court House in the City of Grafton, North Dakota, the defendants herein will make a motion before the Honorable W.J. Kneeshaw, Judge of the District Court, that judgment be entered herein notwithstanding the verdict, said motion being based specifically upon the motion for a directed verdict made at the close of the entire case, and upon all the records and files in this action, and said motion being made under § 7643, 1925 Supplement to the compiled statutes."

Hearing was had on the motion January 5, 1932, pursuant to the notice; and thereafter, on July 29, 1932, the trial court, by its order, granted the motion of the defendants.

On September 24, 1932, plaintiff took an appeal from this order. The appeal came on regularly for hearing before this court, at which time defendants made a motion to dismiss the appeal on the grounds: that no appeal will lie from an order for judgment, or interlocutory order; and that the order appealed from is not an appealable order.

The foregoing is a brief history of the case.

Defendants' motion to dismiss challenges appellate jurisdiction. The notice of appeal states that the appeal is taken from the order of July 29, 1932. This order grants defendants' motion for judgment notwithstanding the verdict, sets aside the previous judgment entered, dismisses the case, and also orders a new judgment for costs in favor of the defendants.

Defendants contend that the order is not an order affecting a substantial right determinative of the case and, therefore, is not appealable. It is well settled in this state that an appeal from an order timely made, granting a motion for judgment notwithstanding the verdict, is not appealable, for the reason that an appeal can be taken from the judgment entered thereon, which is the proper procedure. Comp. Laws 1913, § 7841; Warren v. Slaybaugh, 58 N.D. 904, 228 N.W. 416; Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209; Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757, 73 Am. St. Rep. 784.

On the other hand, plaintiff contends that the order in question is more than a mere order for judgment; that the order also sets aside a judgment previously entered, which gives it the character of an order affecting a substantial right, from which an appeal may be taken. Plaintiff contends, further, that the motion for judgment notwithstanding the verdict came too late, as the motion was made after judgment was entered pursuant to the verdict; that the order and judgment based thereon are void; and that, therefore, the order is one made after judgment, which is appealable under subdivision 2 of § 7841, Compiled Laws 1913.

At common law a party, to avail himself of a motion for judgment non obstante veredicto, must present the same before judgment is entered on the verdict. The remedy could be employed by the plaintiff only. In most jurisdictions its use has been broadened either by statutory enactments or by judicial construction, so that the remedy is available to all parties. Hay v. Baraboo, 127 Wis. 1, 105 N.W. 654, 3 L.R.A.(N.S.) 84, 115 Am. St. Rep. 977; Kirk v. Salt Lake City, 32 Utah, 143, 89 P. 458, 12 L.R.A.(N.S.) 1021; L.R.A. 1916E, 829, note, Ann. Cas. 1913A, 1023, 1024, note.

These modifications, however, did not affect the common law rule of timely presentation. It is uniformly held that the motion must be made before judgment is entered, and a failure to do so, within such time, is fatal. Ruling Case Law states the rule thus: "In all cases, even in jurisdictions which have relaxed the strict rule of the common law limiting the right to judgment non obstante veredicto to the plaintiff and excluding all considerations of the evidence, it is still essential that the motion be made before judgment, as it is too late after judgment." 15 R.C.L. p. 608, § 47.

See also: State v. Commercial Bank, 6 Smedes M. 218, 45 Am. Dec. 280; Hurt v. Ford, 142 Mo. 283, 44 S.W. 228, 41 L.R.A. 823; Wheeler v. Prexton, 32 Ky. L. Rep. 791, 107 S.W. 274; Yerkes v. Antrim Circuit Judge, 200 Mich. 443, 166 N.W. 976; Zilka v. Graham, 26 Idaho, 163, 141 P. 639; Hillis v. Kessinger, 88 Wash. 15, 152 P. 687, Ann. Cas. 1917D, 757; Neill v. Metropolitan Casualty Ins. Co. 135 Tenn. 28, 185 S.W. 701, L.R.A. 1916E, 825; First Nat. Bank v. Thompson, 55 S.D. 629, 227 N.W. 81; 1 Freeman, Judgm. 5th ed. p. 18; 33 C.J. 1187.

This universal rule, based upon the common law, was the accepted practice in this state prior to the enactment of chapter 63, Session Laws 1901 (Comp. Laws 1913, § 7643). This enactment contains the first mention of the subject in our statutes. Richmire v. Andrews G. Elevator Co. 11 N.D. 453, 92 N.W. 819.

By this enactment a motion for judgment notwithstanding the verdict could be coupled with a motion for a new trial, and such motion in the alternative was available either before or after entry of judgment. This remedy, in its alternative form, is merely cumulative; and, except as to those instances coming within its purview, did not disturb the existing practice with reference to a motion for judgment notwithstanding the verdict, or a motion for a new trial, when made separately. Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299.

It was held, however, that when the motion was made in the alternative, the granting of a new trial precluded a review of the trial court's actions in denying judgment non obstante. Stratton v. Rosenquist, 37 N.D. 116, 163 N.W. 723.

The construction placed upon the statute in the case of Stratton v. Rosenquist, supra, evidently inspired the further amendment, as found in chapter 133, Session Laws 1921.

This amendment provides, that on an appeal from the whole order, on a motion made in the alternative, the appellate court can review the whole order, where the motion has been denied in whole or in part; whereas, before the amendment, the granting of a part of the motion precluded a review of that part which was denied. This chapter was amended by chapter 335, Session Laws 1923. By this latter amendment, new matter is added; otherwise, the provisions of the law are retained in identical language. Section 7643, 1925 Supplement to the Compiled Laws of 1913.

There is nothing in this statute, by direct authorization or by implication, that permits a motion for judgment notwithstanding the verdict, standing alone, to be made after judgment. The statute does not contemplate such contingency. Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299, supra.

From the foregoing we must come to the conclusion, therefore, that, save and except as to those instances that come within the purview of this statute, the universal rule based upon the common law, which requires a motion non obstante to be presented before entry of judgment, still obtains in this state.

Defendants contend that the recognized practice in this state has given the same character to a motion for judgment notwithstanding the verdict as for a new trial, in that the same may be made after judgment and with the effect that the granting of the motion, of itself, sets aside the judgment. There is no provision in our statutes indicating that the granting of a motion for judgment notwithstanding the verdict, ipso facto, sets aside the judgment; nor can any such conclusion be arrived at from the common law rule as it exists in this state.

We are aware of the fact that the trial court has the power, when properly exercised, to set aside its judgments, either on its own motion or on motion of the parties. Comp. Laws 1913, §§ 7354, 7665; and § 7660 as amended (Comp. Laws Supp. 1925); De Vall v. De Vall, 60 Or. 493, 118 P. 843, 120 P. 13, 40 L.R.A.(N.S.) 291, Ann. Cas. 1914A, 409. Moreover, there existed a valid judgment, and no proceedings had been taken to set it aside; and there is no claim that the judgment was entered inadvertently.

As heretofore stated, said § 7643, 1925 Supplement to the Compiled Laws, 1913, provides a remedy for vacating a verdict after judgment entered thereon, by motion non obstante, only when coupled with a motion for a new trial. We have also indicated that this provision of our statute has no application to the facts in this case. It is significant, therefore, that the only express authority otherwise, for vacating or setting aside a verdict, is by motion for a new trial. Comp. Laws 1913, §§ 7660 and 7665. This latter motion may be made either before or after entry of judgment, in contradistinction to a motion non obstante, which can be made only before the judgment is entered. The generic distinctions are obvious from the cases cited, and the granting of a motion for a new trial, ipso facto, sets aside the judgment without specific motion or order therefor. 46 C.J. p. 346, § 511, and cases cited; 20 R.C.L. p. 313, § 97.

The comparatively recent case of First Nat. Bank v. Thompson,55 S.D. 629, 227 N.W. 81, supra, is enlightening. In this latter case a motion for judgment notwithstanding the verdict was coupled with a motion to set aside the judgment. The court held that the motion for judgment notwithstanding the verdict, presented after judgment was entered on the verdict, was not timely made; and that there was no authority for a motion to set aside the judgment when not made in connection with a motion for a new trial.

The court said, in part (55 S.D. 631, 227 N.W. 81):

"But we are clearly of the view that the motion came too late. Obviously a second judgment, inconsistent with the first judgment, could not have been entered upon the motion unless the judgment already entered were first vacated and set aside. Though jurisdiction may exist to correct mistakes and to make a judgment conform to verdict, the trial court is without jurisdiction to vacate and set aside a judgment, on account of the insufficiency of the evidence to support the verdict, except on motion for new trial. The purpose of the motion for judgment notwithstanding the verdict, and of the motion to vacate the judgment in this case, was to obtain a review of the evidence after judgment. The question as to the sufficiency of evidence to support the verdict is a matter decided and concluded by the entry of judgment in conformity with that verdict, except for established procedure which may permit a reconsideration or review of the question. The relief sought by the motions below was obtainable by motion for new trial and not otherwise."

See also Wagner v. Northern L. Ins. Co. 70 Wash. 210, 126 P. 434, 44 L.R.A.(N.S.) 338.

The record discloses that the first judgment was entered on November 27, 1931, and that written notice of such entry was served on the attorneys for defendants on the same date the judgment was entered. This judgment was not attacked directly by any regular proceeding and, therefore, became final six months after notice of the judgment. The second judgment, which was entered August 11, 1932, on the order dated July 29, 1932, was therefore erroneous.

A judgment entered, within the jurisdiction of the court, stands until it is vacated or modified by regular proceedings. Black on Judgments states, "When a judgment is once entered of record, it must stand as the judgment, until it is vacated, modified, or disposed of by some means provided by law; entering additional judgment entries is not one of them." 1 Black, Judgm. 2d ed. § 304; First Nat. Bank v. Thompson, 55 S.D. 629, 227 N.W. 81, supra; Wagner v. Northern L. Ins. Co. 70 Wash. 210, 126 P. 434, 44 L.R.A.(N.S.) 338, supra. See also Tuttle v. Tuttle,48 N.D. 10, 181 N.W. 898.

Plaintiff's assignments of error challenge the regularity of all of the acts of the trial court in granting the motion notwithstanding the verdict, setting aside the previous judgment, dismissing the action, and ordering judgment for costs against plaintiff. These assignments are fully sustained by the record.

The foregoing views also determine appellate jurisdiction. The order appealed from is a final order affecting a substantial right upon summary application in an action after judgment, and is clearly appealable under subdivision 2 of § 7841, Compiled Laws 1913. It is also appealable under subdivision 4 of said section, which provides that when the order "involves the merits of an action or some part thereof" an appeal may be had. Boyd v. Lemmon, 49 N.D. 64, 189 N.W. 681; Ellis v. George, 43 N.D. 408, 175 N.W. 623; Shockman v. Ruthruff, 28 N.D. 597, 149 N.W. 680; St. Paul, M. M.R. Co. v. Blakemore, 17 N.D. 67, 73, 114 N.W. 730, 732; Weber v. Tschetter, 1 S.D. 205, 46 N.W. 201; Harvey v. Harvey,201 Wis. 378, 230 N.W. 79.

The ruling on a motion for a directed verdict may be made the basis of a motion for a new trial. In short, in a case like this, the defendant might have moved for a new trial on the ground that the trial court erred in denying the motion for a directed verdict; and in a case where a motion for judgment notwithstanding the verdict is made, the trial court may, instead of ordering judgment notwithstanding the verdict, grant a new trial. Larson v. Albers, 53 N.D. 340, 205 N.W. 875. Hence, it is suggested that inasmuch as at the time the motion in this case was submitted, a motion for judgment notwithstanding the verdict did not lie, the motion should be considered as a motion for a new trial, and disposed of as such. Larson v. Albers, supra; Wagner v. Northern L. Ins. Co. 70 Wash. 210, 126 P. 434, 44 L.R.A.(N.S.) 338, supra.

Assuming, without deciding, that a motion for judgment notwithstanding the verdict, made after judgment has been entered, may be considered and disposed of as a motion for a new trial, obviously, the only errors that can be considered on such motion are those stated in the motion. A motion for judgment notwithstanding the verdict, in effect, reviews only the court's ruling in denying a motion for a directed verdict. Ennis v. Retail Merchants Asso. Mut. F. Ins. Co. 33 N.D. 20, 36, 156 N.W. 234. In the instant case the motion for judgment notwithstanding the verdict was restricted to the only ground properly reviewable on such motion, namely, the ruling on the motion for a directed verdict. Hence, if the motion for judgment notwithstanding the verdict in this case is considered as a motion for a new trial, it is clear that the trial court was in error in granting the motion, as an examination of the evidence discloses that the defendant was not entitled to a directed verdict, but that the plaintiff had introduced substantial evidence sufficient to establish a prima facie cause.

It follows, therefore, that in any event the trial court was in error in making the order appealed from, and it is directed to vacate and set aside such order and the judgment entered thereon. This will, of necessity, result in a reinstatement of the judgment entered November 27, 1931. Appellant will recover his costs on the appeal.

CHRISTIANSON and BURR, JJ., concur.