Thompson v. Llewellyn

MR. JUSTICE ANGSTMAN,

(concurring in part and dissenting in part):

I concur in the conclusion that plaintiffs failed to make out a case for the jury and that defendant’s motion for nonsuit should have been sustained.

I think, however, the cause should be remanded for a new trial. There is a difference of opinion among the courts on this point. See 5B O.J.S. Appeal and Error, see. 1941, p. 487, et seq., notes 2 and 3.

This court had that question before it in Gailbreath v. Armstrong, 118 Mont. 299, 167 Pac. (2d) 337, 339. In that case, plaintiff recovered verdict and judgment and there was failure to prove a certain issue vital to his right of recovery. This court, in disposing of the appeal, said:

“Therefore, while the judgment must be reversed and the cause remanded, the appropriate disposition of the cause will not be entry of judgment for defendant and interveners, but a retrial. ’ ’

I believe we should order a retrial of this cause.