McLain v. Easley

ON REHEARING. [En Banc. February 27, 1928.] Having considered respondents' petition for rehearing, the court adheres to the decision rendered by Department One in so far as that decision reverses the judgment of the superior court in awarding judgment in favor of respondents notwithstanding the verdict.

Our attention is now called to a manifest error, inadvertently made, in the remanding of the case to the superior court and directing the entry of judgment upon the verdict rendered in favor of appellants. There had been made by respondents in the superior court, not only a motion for judgment notwithstanding the verdict, which motion was granted, but also, in the alternative, a motion for new trial, which was not disposed of; this because there was no occasion for the court considering the motion for a new trial after granting the motion for judgment notwithstanding the verdict. This condition of the record was overlooked in the Departmental decision. It is plain, under our previous holdings, that upon the reversal of the judgment notwithstanding the verdict, there being a motion for new trial undisposed of, the case should have been remanded to the superior court for disposition of that motion and for further proceedings. Paich v. Northern Pac. R. Co.,86 Wn. 379, 150 P. 814; Casey v. Williams, 111 Wn. 348,190 P. 1011; Goldsby v. Seattle, 115 Wn. 566, 197 P. 787;Jackson v. Mitsui Co., 132 Wn. 395, 232 P. 317.

We therefore now remand the case accordingly. To this extent the decision of Department One disposing of the appellants' appeal to this court, is corrected.