Fladeland v. Nomeland, 7791

• Decision Date: 19 March 1959
• Docket Number: No. 7791,7791
• Citation: 95 N.W.2d 513
• Parties: Orlando FLADELAND, Plaintiff and Respondent, v. Elmer NOMELAND, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 513

95 N.W.2d 513

Orlando FLADELAND, Plaintiff and Respondent, v. Elmer NOMELAND, Defendant and Appellant.

No. 7791.

Supreme Court of North Dakota.

March 19, 1959.

Syllabus by the Court

1. Where the trial court has passed upon the sufficiency of the evidence to sustain the verdict on a motion for judgment notwithstanding the verdict and an order denying the motion has become final, neither the order nor the sufficiency of the evidence is reviewable on an appeal from the judgment taken after the time for appeal from the order has expired. Jager v. Grommesh, N.D., 77 N.W.2d 873 followed.

Einar Johnson, Lakota, and Frank Kosanda, Asst. Atty. Gen., for defendant and appellant.

Lanier, Lanier & Knox, Fargo, for plaintiff and respondent.

MORRIS, Judge.

This is an action to recover damages for personal injuries which the plaintiff claims to have sustained in the course of his employment by the defendant. The liability sought to be enforced is that provided by Section 65-0901 NDRC 1943 which prescribes the liability of uninsured employers for injuries to employees under the workmen's compensation law. The defendant moved for a dismissal of this appeal because of procedural defects. The procedural question being decisive it is unnecessary to recite the facts disclosed by the evidence.

The case was tried to a jury and a verdict rendered in favor of the plaintiff on December 18, 1957. An order for judgment pursuant to the verdict was signed by the court on December 23, 1957 and filed in the office of the clerk of the district court of Cass County on the following day.

On December 30, 1957 there was filed by defendant's attorneys in the office of the clerk a notice of motion for judgment notwithstanding the verdict dated December 26, 1957, and purporting to notify the attorneys for plaintiff that the motion would be brought on for hearing on the 10th day of January, 1958. Copies of this notice, together with the motion, were mailed to plaintiff's attorneys on December 26, 1957.

On January 31, 1958 judgment was entered in favor of the plaintiff and against the defendant pursuant to the court's order of December 23, 1957. On March 6, 1958 the court signed an order denying the defendant's motion for judgment notwithstanding the verdict and on the following day copies were mailed to the attorneys for the defendant. It was filed with the clerk of court March 10, 1958. No appeal was taken from that order.

The defendant appealed from the judgment by notice of appeal that was accompanied by specifications of error. Both the notice of appeal and specifications were filed...