Paich v. Northern Pacific Railway Co. ( 1915 )

Morris, C. J.

(dissenting) — I am unable to concur in the decision reached by the majority. It cannot be denied, since we have no statutory provision, that the practice regulating the making of motions for judgment notwithstanding the verdict must follow the common law procedure. It must also be conceded that, at common law, such motions must precede the signing and entry of final judgment. If we are to adopt the common law procedure as applied to motions of this character, then we should adopt it as a whole, and not separate it from the essential features of a common law judgment requiring the formal judicial act of the court, signature and entry, before becoming effective. The majority adopt the common law requirement that the motion must precede the judgment, but in determining the character of the judgment, they leave out the common law requirement of formality and substitute the statutory judgment, which is nothing more than the ministerial act of the clerk possessing few, if any, of the common law requirements of a formal judgment. It seems to me it would be better to hold that the motion must be made as at common law, must precede a signed and entered formal judgment as at common law, and that the motion is in time when it precedes such a judgment.

This has been the procedure in this state since Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109. In referring to a motion of this character, it was especially pointed out in Wagner v. Northern Life Ins. Co., 75 Wash. 106, 134 Pac. 685, that the motion there made followed the signing and entry of formal judgment, and that the judgment there referred to was not the one which the clerk is directed to enter upon receipt of the verdict. It is also clearly pointed out in Okazaki v. Sussman, 79 Wash. 622, 140 Pac. 904, that the judgment there was a formal judgment signed by the judge and entered of record. The direction to the clerk to enter judgment immediately upon receipt of the verdict was to preserve the rights of a successful party in the fruits of his judgment. It was not intended, however, to cut off the rights otherwise vested in the losing party of moving against the judgment for insufficiency in law or fact.

I therefore dissent, and since my views call for an affirmance of the judgment, I express no opinion*as to the other matters referred to in the majority opinion.

Mount and Crow, JJ., concur with Morris, C. J.