First Nat. Bank v. Thompson

• Decision Date: 15 October 1929
• Docket Number: 6543.
• Citation: 227 N.W. 81,55 S.D. 629
• Parties: FIRST NAT. BANK OF ABERDEEN v. THOMPSON.
• Court: South Dakota Supreme Court

227 N.W. 81

55 S.D. 629

FIRST NAT. BANK OF ABERDEEN v. THOMPSON.

No. 6543.

Supreme Court of South Dakota

October 15, 1929

Appeal from Circuit Court, Spink County; Frank B. Fisher, Judge.

Action by the First National Bank of Aberdeen, a banking corporation, against Gail Thompson. Judgment for defendant and plaintiff's motion to vacate and set aside the judgment and its motion for judgment notwithstanding the verdict were denied, and plaintiff appeals. Reversed, and remanded with directions.

Van Slyke & Agor, of Aberdeen, for appellant.

Bruell & Henderson, of Redfield, for respondent.

FULLER C.

The action here is upon a promissory note. The defense is fraud and that the defendant, maker of the note, executed the same without consideration and for the purpose of accommodation. Verdict was for the defendant, and judgment was accordingly entered on December 16, 1927. On December 22, 1927, the plaintiff moved the court for judgment non obstante veredicto. An order was then made requiring defendant to show cause why that motion should not be granted. On January 17 1927, the return day, the defendant appeared and objected to the jurisdiction of the court for the reason that judgment had already been entered and because no transcript of the testimony had been prepared and served. The trial court continued the hearing until after March 3, 1927, when a transcript was served by the plaintiff upon defendant, and on May 4, 1927, order was entered denying the motion. The motion for judgment notwithstanding the verdict included the further motion that the court vacate and set aside the judgment already entered. The appeal is stated to be from the order denying plaintiff's motion to vacate and set aside the judgment, and from the order denying plaintiff's motion for judgment notwithstanding the verdict, and from the judgment. Pertinent to a consideration of preliminary questions of procedure is the fact that the substantive inquiry on this appeal relates to the sufficiency of the evidence to support the verdict.

Respondent first questions whether the record of evidence and of proceedings at the trial was timely settled, and reference is made to the fact that the record was settled after the entry of order denying appellant's motion for judgment notwithstanding the verdict. But the question is not material. We are at once confronted with the inquiry whether such a motion may have been granted in any event after the entry of judgment. No direct authority to the point is cited or discoverable by careful research. But we are clearly of the view that the motion came too late. Obviously a second judgment, inconsistent with the first judgment, could not have been entered upon the motion unless the judgment already entered were first vacated and set aside. Though jurisdiction may exist to correct mistakes and to make a judgment conform to verdict, the trial court is without jurisdiction to vacate and set aside a judgment, on account of the insufficiency of the evidence to support the verdict, except on motion for new trial. The purpose of the motion for judgment notwithstanding the verdict, and of the motion to vacate the judgment in this case, was to obtain a review of the evidence after judgment. The question as to the sufficiency of evidence to support the verdict is a matter decided and concluded by the entry of judgment in conformity with that verdict, except for established procedure which may permit a reconsideration or review of the question. The relief sought by the motions below was obtainable by motion for new trial and not otherwise.

In this case there is also an appeal from the judgment. On such appeal the court may consider errors at law occurring at the trial in the admission or rejection of evidence, the ruling on motion for directed verdict, and, we may say, the ruling on motion for judgment notwithstanding the verdictwhen timely made. Williamson v. Voedishch Jewelry Co., 35 S.D. 390, 392, 152 N.W. 508; Fuller v. James Murphy, etc., Co., 53 S.D. ___, 223 N.W. 713, 714; First Nat. Bank v. Wollman, 53 S.D. ___, 225 N.W. 713, opinion filed June 4, 1929. Questions of this character may be considered when a record has been settled. It has not been questioned in this case whether a single appeal can be taken from the judgment and from the orders above mentioned (Nat. Surety Co. v. Cranmer, 27 S.D. 515, 131 N.W. 864; Gordon v. Kelley, 20 S.D. 70, 104 N.W. 605), and, since the question of duplicitous appeal does not involve a matter of jurisdiction of this court, we will deal with the appeal as properly taken from the judgment, and consider the trial court's refusal to direct a verdict on plaintiff's motion.

In October, 1924, the superintendent of banks ordered an assessment to be levied upon the shares of the stockholders in the Northville State Bank. The assessment was not made. In the first week of April, 1925, one Bockler, who was cashier of the bank, requested the superintendent of banks to withhold the closing of the Northville State Bank, and stated that he could bring about its recapitalization by means which included the sale of the bank stock to certain friends and others and the taking from some of these persons of promissory notes which would be sold. In the same month Bockler obtained from respondent Thompson a note payable to Bockler in the sum of $900. For this note Thompson received no consideration. According to part of the testimony of respondent, Bockler made it clear to him that the object of the note was a personal accommodation to Bockler and not for the assistance of the bank; that Bockler needed money and would use the note at the Northville State Bank; and that the note would remain in the bank until he should pay it off by the sale of certain property which Bockler owned. Bockler represented that the Northville State Bank was in good condition and its stock worth a hundred cents on the dollar. Respondent, Thompson, claims that he would not have signed the note had he known that the bank was not in a sound condition or that Bockler's intention was otherwise than as above stated. He testified that in the latter part of April or the first of May, 1925, Bockler again saw him and represented that he (Bockler) believed he would be able to pay off the note sooner than he had previously considered and, for that reason, wanted a new note with the date changed. Respondent thereupon signed the note, which is in suit, of $900, and the note was thereafter transferred...