Co-Operative v. Broughton

• Decision Date: 09 June 1942
• Docket Number: Case Number: 30837
• Citation: 127 P.2d 850,191 Okla. 229,1942 OK 233
• Parties: PEOPLES ELECTRIC CO-OPERATIVE v. BROUGHTON
• Court: Oklahoma Supreme Court

1942 OK 233

127 P.2d 850

191 Okla. 229

PEOPLES ELECTRIC CO-OPERATIVE v. BROUGHTON

Case Number: 30837

Supreme Court of Oklahoma

Decided: June 9, 1942

Syllabus

¶0 1. APPEAL AND ERROR--Errors of law occurring before jury trial reviewable without filing motion for new trial where notice of intention to appeal given within ten days after rendition of judgment.

Fundamental errors of law, properly excepted to, occurring before trial in a cause triable to a jury may be reviewed and corrected on appeal without a motion for new trial having been filed, if notice of intention to appeal is given within ten days after rendition of judgment.

2. SAME---Errors of law of law and fact occurring at trial reviewable if motion for new trial is filed within three days after rendition of judgment and notice of intention to appeal is given within ten days after motion for new trial is passed upon.

Errors of law and fact, properly excepted to, occurring at the trial may be reviewed and corrected on appeal if motion for new trial is filed within three days after rendition of judgment and if notice of intention to appeal is given within ten days after such motion for new trial is passed upon by the trial judge.

3. SAME--JUDGMENT--Motion for judgment notwithstanding verdict must be made before judgment rendered--Requisite notice of intention to appwal to secure review of errors of law occurring before trial--Motion for judgment notwithstanding verdict filed within three days after judgment rendered may be treated as motion for new trial.

Section 429, O. S. 1931, 12 Okla. St. Ann. §698, provides for and authorizes a motion for judgment notwithstanding the verdict of the jury, but same must be made or filed before judgment is rendered; if so made or filed and notice of intention to appeal from the ruling of the court thereon is given within ten days after same is passed upon by the trial judge, fundamental errors of law occurring before trial will be preserved, and on appeal from the order overruling such motion the Supreme Court will review and correct such errors; if same is not filed before judgment is rendered, but is filed thereafter and within three days after rendition of judgment, same, if sufficient in all other respects, may be treated as a motion for new trial.

4. SAME--In absence of motion for new trial and in absence of notice of intention to appeal given within ten days after rendition of judgment, where motion for judgment notwithstanding verdict was filed six days after rendition of judgment no errors of law or fact are reviewable and attempted appeal from order overruling such motion would be dismissed.

Where a judgment is rendered in conformity with a verdict of a jury on December 10, 1941, and no motion for new trial, or motion for judgment on the pleadings notwithstanding the verdict of the jury, is filed within three days thereafter and no notice of intention to appeal from the judgment of the court so rendered within ten days thereafter is given, but a motion for judgment notwithstanding the verdict of the jury is filed on the 16th day of December, or six days after said judgment was rendered, no errors of law or fact, fundamental or otherwise, occurring before or during the trial may be reviewed or corrected on appeal and an attempted appeal from an order overruling such motion filed for judgment notwithstanding the verdict of the jury is without authority of law and does not confer jurisdiction on the Supreme Court.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action for damages for personal injuries by Ernest Broughton, a minor, by Rosa Broughton, next friend, against Peoples Electric Co-operative, a corporation. Judgment for plaintiff, and defendant appeals. Appeal dismissed.

Busby, Harrell & Trice, of Ada, and Peyton Brown, of Blackwell, for plaintiff in error.

Wimbish & Wimbish and Moss Wimbish, all of Ada, for defendant in error.

ARNOLD, J.

¶1 This is an action for personal injuries by Ernest Broughton, a minor, by next friend, in the district court of Pontotoc county. The issues were developed in the usual manner (motion, demurrer, answer and reply filed), and the cause came on for trial; both parties announcing ready, the cause was tried to a jury. The jury returned its verdict December 10, 1941. The clerk's minutes show, as the last entry after verdict of the jury, a motion for judgment notwithstanding the verdict of the jury filed December 16th. The succeeding minute shows journal entry of judgment was entered December 16th. It renders judgment in accordance with the verdict of the jury. Just preceding the signature of the trial judge is this sentence: "10th day of December, 1941."

¶2 Pending hearing on the motion for "judgment notwithstanding the verdict" filed just before the entry of judgment, execution was issued and returned "no property found," and thereafter garnishment was issued to two banks in Ada, Okla. According to their answers they possessed enough money belonging to the defendant company to pay the judgment.

¶3 The plaintiff moved to strike the motion for judgment notwithstanding the verdict, and this motion, together with the motion for judgment notwithstanding the verdict, was heard by the court January 7, 1942, and both motions denied. The defendant gave notice of appeal on this date; asked for and received extension of time and requested stay of execution pending the giving of a bond. The application for stay of execution was taken under advisement by the court. On January 12th the defendant below filed a surety bond (the sufficiency thereof is not questioned). On January 29th the plaintiff below made application for an order requiring the banks, garnishees, to pay funds into court. The next day the defendant filed its application to vacate and discharge the garnishment proceedings and asked the court to require the clerk to approve the bond then on file. On February 4th the court overruled the motion of the defendant to discharge the garnishment proceeding and its application for stay of execution and sustained the motion of the plaintiff for an order directing the garnishees to pay the moneys into court. It ordered each bank to pay into court $3,500. Defendant served exceptions to the rulings of the court on its motions.

¶4 The transcript was filed in this court on February 27th and its "application for supersedeas and stay of execution and other proceedings in the trial court" was immediately made. Plaintiff replied herein to the said application and filed a motion to dismiss appeal.

¶5 The foregoing facts are conclusively shown by the record, and there is no contest thereon.

¶6 It is the contention of the defendant that a motion for judgment notwithstanding the verdict of the jury is specifically provided by section 429, O. S. 1931, 12 Okla. St. Ann § 698. It reads as follows:

"Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party."

¶7 It contends that by said section of the statute there is no time limitation for filing such a motion; that therefore same could be filed any time within term, or at least before judgment is entered by the court. It further contends that such a motion, provided by said section of the statutes, was enacted for the purpose of permitting an appeal on the legal sufficiency of the pleadings, and that the time limitation fixed by statute for the filing of a motion for new trial is not applicable to such a motion. In support of its contention it relies on such cases as: 34 C. J. 44, 55; Anderson v. Rayley, 116 Ore. 113, 239 P. 829; DeWatteville v. Sims, 44 Okla. 708, 146 P. 224; Maroney v. Tannehill, 90 Okla. 224, 215 P. 938; Cockrell v. Schmitt, 20 Okla. 207, 94 P. 521; Boynton v. Crockett, 12 Okla. 57, 69 P. 869; State v. Scott, 35 Wyo. 108 247 P. 699, at 707; Foster v. Leftwich, 52 Okla. 28, 152 P. 583; Beek v. International Harvester Co., 85 Wash. 413, 148 P. 35; Spruce v. Chicago, etc., Co., 139 Okla. 123, 281 P. 586; Nichols v. Bonaparte, 171 Okla. 234, 42 P.2d 866; Firemen's Fund Ins. Co. v. Griffin, 176 Okla. 94, 54 P.2d 1032; Bailey v. Willoughby, 33 Okla. 194, 124 P. 955; and Whitaker v. Crowder, 26 Okla. 786, 110 P. 776.

¶8 The plaintiff concedes that such a motion is proper for such purposes as contended for by defendant, but contends that it must be filed within three days; that if same is not filed within three days and no motion for new trial has been filed, all errors have been waived and the judgment becomes final at the expiration of the three-day period provided for the filing of a motion for new trial; plaintiff contends that there has never been an attack leveled at the verdict of the jury or the judgment of the court in any manner other than that of the filing of the motion for judgment notwithstanding the verdict as hereinbefore set forth; that therefore the appeal in this case is frivolous and without merit and should be dismissed.

¶9 By section 427, O. S. 1931, 12 Okla. St. Ann §696, it is provided:

"When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration."

¶10 There is no specific provision of the statute concerning the filing of a motion for judgment notwithstanding the verdict unless it can be said that section 698, supra, relates thereto and authorizes same. Such a motion was generally used at common law and is now generally used in states where the common law is still in force.

¶11 We have recognized such a motion in the following cases: Myrick v. City of Tulsa, 175 Okla. 647, 54 P.2d 330; Queen Ins. Co. of America...