Cone v. West Virginia Pulp Paper Co, No. 184

CourtUnited States Supreme Court
Writing for the CourtBLACK
Citation67 S.Ct. 752,330 U.S. 212,91 L.Ed. 849
Decision Date03 March 1947
Docket NumberNo. 184
PartiesCONE v. WEST VIRGINIA PULP & PAPER CO

330 U.S. 212
67 S.Ct. 752
91 L.Ed. 849
CONE

v.

WEST VIRGINIA PULP & PAPER CO.

No. 184.
Argued Feb. 3, 1947.
Decided March 3, 1947.

Motion to Amend Mandate Denied June 16, 1947.

See 331 U.S. 794, 67 S.Ct. 1725.

Messrs. H. Wayne Unger, of Walterboro, S.C., and James P. Mozingo, of Darlington, S.C., for petitioner.

Messrs. Christie Benet, of Columbia, S.C., and Charles W. Waring of Charleston, S.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner brought this action in a South Carolina state court. Upon motion of respondent, it was removed to the Federal District Court because of diversity

Page 213

of citizenship of the parties. The complaint claimed $25,000 damages upon allegations that the respondent's agents had trespassed upon and cut timber from lands owned by and in the possession of the petitioner. Respondent's answer denied that the petitioner had title or possession of the lands and timbers. Both title and possession became crucial issues in the trial. The burden of proving them rested on the petitioner.1 When all the evidence of both parties had been introduced, the respondent moved for a directed verdict in its favor on the ground that the petitioner had failed to prove that he either owned or was in possession of the land.2 This motion was denied. The jury returned a verdict for petitioner for $15,000, and the court entered judgment on the verdict. The respondent moved for a new trial on the ground of newly discovered evidence. This motion was denied. Respondent did not move for judgment notwithstanding the verdict as it might have done under Rule 50(b) of the

Page 214

Federal Rules of Civil Procedure, which is set out below.3

The Circuit Court of Appeals decided that the admission of certain evidence offered by the petitioner to prove legal title was prejudicial error. It held that without this improperly admitted evidence petitioner's proof was not sufficient to submit the question of title to the jury. That court also held that petitioner's evidence showing possession was insufficient to go to the jury. It therefore reversed the case. But instead of remanding it to the District Court for a new trial, the Circuit Court of Appeals directed that judgment be entered for respondent. That court has thus construed Rule 50(b) as authorizing an appellate court to direct a judgment notwithstanding the verdict, even though no motion for such a judgment had been made in the District Court within ten days after the jury's discharge.

The petition for certiorari challenged the power of an appellate court to direct entry of a judgment notwithstanding the verdict where timely motion for such a judg-

Page 215

ment had not been made in the District Court. On three previous occasions we have granted certiorari to consider this point but failed to reach it because, upon examination of the evidence, we found it sufficient to justify submission of all three cases to the jury. Conway v. O'Brien, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969; Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945; Halliday v. United States, 315 U.S. 94, 62 S.Ct. 438, 86 L.Ed. 711. In this case we granted certiorari 'limited to the questions of federal procedure raised by the petition for the writ.' 329 U.S. 701, 67 S.Ct. 57. The point we had in mind was whether a party's failure to make a motion in th District Court for judgment notwithstanding the verdict, as permitted in Rule 50(b), precludes an appellate court from directing entry of such a judgment. Other questions have been discussed here, but we do not consider them. Consequently, we accept, without approving or disapproving, the Circuit Court of Appeals' holding that there was prejudicial error in the admission of evidence and in the submission of the case to the jury.

Rule 50(b) contains no language which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party. The rule provides that the trial court 'may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.' This 'either-or' language means what it seems to mean, namely, that there are circumstances which might lead the trial court to believe that a new trial rather than a final termination of the trial stage of the controversy would better serve the ends of justice. In short, the rule does not compel a trial judge to enter a judgment notwithstanding the verdict instead of ordering a new trial; it permits him to exercise a discretion to choose between the two alternatives. See Berry v. United States, supra, 312 U.S. 452,

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453, 61 S.Ct. 638, 85 L.Ed. 945.4 And he can exercise this discretion with a fresh personal knowledge of the issues involved, the kind of evidence given, and the impression made by witnesses. His appraisal of the bona fides of the claims asserted by the litigants is of great value in reaching a conclusion as to whether a new trial should be granted. Determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and...

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454 practice notes
  • Washburn v. City of Fed. Way, No. 66534–1–I.
    • United States
    • Court of Appeals of Washington
    • July 23, 2012
    ...and (b). 85.546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). 86.Id. at 400–01, 126 S.Ct. 980 (quoting Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948)). 87.Id. 88.Id. at ......
  • Lenard v. Argento, Nos. 80-2602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 15, 1983
    ...limits the relief available from the appellate court to that of possibly ordering a new trial. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); 5A Moore's Federal Practice p 50.12 (2d ed. 1981). Defendants Argento and Sansone made several post-trial......
  • Belk, Inc. v. Meyer Corp., No. 10–1664.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 9, 2012
    ...has the feel of the case which no appellate printed transcript can impart.’ ” Id. at 401, 126 S.Ct. 980 (quoting Cone, 330 U.S. at 216, 67 S.Ct. 752). Moreover, the Court explained, the requirement “ ‘is ... an essential part of the rule, firmly grounded in principles of fairness.’ ” Id. (q......
  • Does 1-7 v. Round Rock Independent School Dist., No. A-07-CA-708-SS.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 20, 2007
    ...Missouri v. Jenkins, 495 U.S. 33, 53, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990) (citing Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 91 L.Ed. 849 (1947)). Thus, the Court's silence on the issue cannot be taken for anything more than it is — silence. See, e.g. United ......
  • Request a trial to view additional results
454 cases
  • Washburn v. City of Fed. Way, No. 66534–1–I.
    • United States
    • Court of Appeals of Washington
    • July 23, 2012
    ...and (b). 85.546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). 86.Id. at 400–01, 126 S.Ct. 980 (quoting Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Globe Liquor Co. v. San Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948)). 87.Id. 88.Id. at ......
  • Lenard v. Argento, Nos. 80-2602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 15, 1983
    ...limits the relief available from the appellate court to that of possibly ordering a new trial. Cone v. West Virginia Pulp and Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); 5A Moore's Federal Practice p 50.12 (2d ed. 1981). Defendants Argento and Sansone made several post-trial......
  • Belk, Inc. v. Meyer Corp., No. 10–1664.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 9, 2012
    ...has the feel of the case which no appellate printed transcript can impart.’ ” Id. at 401, 126 S.Ct. 980 (quoting Cone, 330 U.S. at 216, 67 S.Ct. 752). Moreover, the Court explained, the requirement “ ‘is ... an essential part of the rule, firmly grounded in principles of fairness.’ ” Id. (q......
  • Does 1-7 v. Round Rock Independent School Dist., No. A-07-CA-708-SS.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 20, 2007
    ...Missouri v. Jenkins, 495 U.S. 33, 53, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990) (citing Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 91 L.Ed. 849 (1947)). Thus, the Court's silence on the issue cannot be taken for anything more than it is — silence. See, e.g. United ......
  • Request a trial to view additional results

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