Fladeland v. Nomeland ( 1959 )

MORRIS, Judge.

This is an action to recover damages for personal injuries which the plaintiff claims to have sustained in the course of his employment by the defendant. The liability sought to be enforced is that provided by Section 65-0901 NDRC 1943 which prescribes the liability of uninsured employers for injuries to employees under the workmen’s compensation law. The defendant moved for a dismissal of this appeal because of procedural defects. The procedural question being decisive it is unnecessary to recite the facts disclosed by the evidence.

The case was tried to a jury and a verdict rendered in favor of the plaintiff on December 18, 1957. An order for judgment pursuant to the verdict was signed by the court on December 23, 1957 and filed in the office of the clerk of the district court of Cass County on the following day.

On December 30, 1957 there was filed by defendant’s attorneys in the office of the clerk a notice of motion for judgment notwithstanding the verdict dated December 26, 1957, and purporting to notify the attorneys for plaintiff that the motion would be brought on for hearing on the 10th day of January, 1958. Copies of this notice, together with the motion, were mailed to plaintiff’s attorneys on December 26, 1957.

On January 31, 1958 judgment was entered in favor of the plaintiff and against the defendant pursuant to the court’s order of December 23, 1957. On March 6, 1958 the court signed an order denying the defendant’s motion for judgment notwithstanding the verdict and on the following day copies were mailed to the attorneys for the defendant. It was filed with the clerk of court March 10, 1958. No appeal was taken from that order.

The defendant appealed from the judgment by notice of appeal that was accompanied by specifications of error. Both the notice of appeal and specifications were filed in the office of the clerk of the district court July 21, 1958 having been previously served on the attorneys for plaintiff. The specifications of error challenged the sufficiency of the evidence to support the verdict of the jury and the order of the court denying the defendant’s motion for judgment notwithstanding the verdict.

The plaintiff takes the position that our decision in Jager v. Grommesh, N.D., 77 N.W.2d 873, is controlling and that the appeal brings nothing before this court for review.

On this appeal the defendant seeks to have us review the sufficiency of the evidence and the order of the district court denying his motion for judgment notwithstanding the verdict. By his motion for judgment notwithstanding the verdict the defendant raised the same issues with respect to the sufficiency of the evidence that he seeks to raise by this appeal. The trial court in determining the motion passed upon those issues. The order denying the motion for judgment notwithstanding the verdict is an appealable order from which the defendant could have appealed within sixty days after written notice thereof. He did not appeal. The order became final. Neither the order nor the sufficiency of the evidence can be reviewed on an appeal from the judgment that was taken after the order became final. The questions that are controlling here were considered fully in Jager v. Grommesh, supra and are determined thereby. It would serve no good purpose to repeat here what we said in that case. The appeal presents no issues to this court for decision. The judgment is affirmed.

SATHRE, C. J., and MORRIS, BURKE, and TEIGEN, JJ.