Hamaker v. Patrick

Decision Date07 October 1932
Docket Number27986
Citation244 N.W. 420,123 Neb. 809
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.


Syllabus by the Court.

1. This court, in the exercise of statutory authority, may, at its option, consider a plain error not specified in appellant's brief.

2. Netusil v. Novak, 120 Neb. 751, 235 N.W. 335, and First Nat. Bank v. Broyles, 122 Neb. 414, 240 N.W 546, re-examined, approved and distinguished.

3. It is settled that the purpose of section 20-1315, Comp. St. 1929, was to take over and adopt the common-law practice as to rendering judgment non obstante veredicto.

4. Under our Code, as at common law, judgments non obstante veredicto, if granted at all, can be granted only upon the pleadings. Evidence is not considered.

5. In a case wherein a party is entitled to a jury trial, and the pleadings do not confess the right to judgment, and in which a jury's verdict is returned and judgment entered thereon, the district court, at a subsequent term, cannot disregard this verdict and judgment, or set the same aside and, without a new trial, proceed to enter such judgment as the evidence warrants.

6. Pleadings examined, and, in view of the ultimate facts therein appearing, held ample to support the verdict returned and judgment as originally entered thereon.

Appeal from District Court, Douglas County; Leslie, Judge.

On rehearing.

Former judgment reversed.

For former opinion, see 122 Neb. 688, 241 N.W. 537.

Herman Aye and L. J. Te Poel, for appellant.

William Baird & Sons and L. C. Hupp, contra.




This is an action at law, brought in the district court for Douglas county by Juanita Hamaker against Abraham L. Patrick. Plaintiff sets forth in her petition two counts to recover for loss occasioned by the occupation and use of lands of plaintiff held by the defendant for three years. The first count sets forth an oral contract by defendant to pay the plaintiff the sum of $ 1,275 a year for said occupancy, and the second count sought a recovery of the same use and occupancy, to be determined and fixed by the reasonable value of the use of these lands for the same period of time covered by the first count. The obvious intention of the pleader was to meet the conditions which the evidence as finally introduced on the trial might establish, and is permitted by the Code.

To this petition the amended and substituted answer of the defendant was filed, and the plaintiff filed a reply.

A trial was had to a jury, both parties introducing evidence to sustain the allegations of their respective pleadings.

At the close of all the evidence, a motion was orally made by the defendant for an instructed verdict in his behalf. This motion the trial court then overruled, and submitted the case to the jury on the pleadings, the evidence, and the instructions of the court. This jury, on January 8, 1931, it being one of the days of the October, 1930, term of that court, returned a verdict for plaintiff as prayed in the first count of plaintiff's petition, and judgment was entered thereon. On January 9, 1931, defendant filed his motion for a new trial.

On the 28th day of February, 1931, in the February, 1931, term of the district court for Douglas county, the motion for new trial was sustained by the court, and the verdict of the jury and judgment rendered thereon set aside. In addition thereto, at this time the district court further adjudged "that the order of the court overruling the motion of the defendant for a directed verdict or a dismissal of the action made at the time of the closing of the evidence in the trial of this case, be and is hereby vacated and set aside, and said motion be and is hereby sustained, and the above entitled action be and is hereby dismissed," etc. From this order, without filing a motion for a new trial, plaintiff prosecutes error by availing herself of her statutory appeal.

At the former hearing of this cause at the bar of this court both parties united in presenting the questions involved as necessitating for their proper determination a reference to the evidence contained in the bill of exceptions, which had been duly allowed and constituted a part of the record then before us. But the "aggrieved party" in the district court had filed no motion for a new trial. On the basis of submission thus made the judgment of the district court was affirmed. Hamaker v. Patrick, 122 Neb. 688, 241 N.W. 537. However, thereafter plaintiff's motion for a rehearing was allowed.

Now, for the first time, is presented by the appellant a question of the power (in a sense, jurisdiction over the subject-matter) of the trial court, after having sustained a motion for a new trial at a term subsequent to that at which the jury's verdict was returned and judgment entered thereon, to then enter the final judgment in favor of the appellee appealed from. This question involves no examination of the evidence adduced in the trial court.

Appellee challenges the right of the appellant to at this time raise this question, basing his objections upon the rule that "A party cannot, by filing a brief after the submission of the cause, bring to the notice of the court points not suggested either in the original briefs or on oral argument." He cites in support thereof State v. Omaha Nat. Bank, 59 Neb. 483, 81 N.W. 319, and Batty v. City of Hastings, 69 Neb. 511, 95 N.W. 866. The essential difference between the facts of the record in the instant case and the facts in the cases cited, and to which the rule quoted is applicable, are such as render the authorities on which the appellee relies not in point. In the instant case the motion for rehearing has been heretofore sustained by this court, the judgment of affirmance set aside, and a reargument ordered. Under the rules of this court, this cause is now in the same situation as though no previous argument or submission of the cause had been had. The entire record is open to our consideration. And while it is true that the controlling question now presented was not included in the first brief of appellant filed in this cause, it is contained in appellant's "brief on rehearing." The appellee thus had full opportunity to discuss it.

The question now before us involves the inherent power of the district court, not over persons, but over subject-matter. Very respectable authorities sustain the proposition that "The appellate court will, without any assignment of error or specification in the grounds or reasons of appeal, notice * * * the lower court's want of jurisdiction over the subject-matter." 3 C. J. 1343. The reasoning upon which the authorities collated in support of the text quoted are based afford ample justification of the exercise by this tribunal of its statutory power to, "at its option, consider a plain error not specified in appellant's brief." Comp. St. 1929, sec. 20-1919.

As suggested, the sole question presented for our determination in the present case is the power of the district court in a law case, at a term subsequent to that at which a jury trial was had, to sustain a motion for a new trial seasonably filed, and thereupon, on its own motion, and without intervention of a second jury, enter a final judgment of dismissal therein.

It is obvious that no authority for so proceeding is to be found in Netusil v. Novak, 120 Neb. 751, 235 N.W. 335, or First Nat. Bank v. Broyles, 122 Neb. 414, 240 N.W. 546, here cited.

The controlling principle announced in these cases is not new to the jurisprudence of this state. The ancient common-law authorities phrased the rule as follows: "During the term wherein any judicial act is done, the record remaineth in the breast of the judges of the court, and in their remembrance, and therefore the roll is alterable during that term, as the judge shall direct; but when the term is past, then the record is in the roll, and admitteth no alteration, averment, or proof to the contrary." 2 Coke's Littleton, 260a; 3 Lewis' Blackstone's Commentaries, 407.

In Smith v. Pinney, 2 Neb. 139, Lake, J., in delivering the opinion of this court, employed the following language: "But it is said that the power of the district court over its own judgment is entirely discretionary, and not subject to review by this court. This is true of its orders made during the term at which the judgment is rendered; but this discretion ends with the rising of the court. Thereafter this power must be exercised within the limits prescribed by the statute, and governed by fixed principles of law. To these the courts must confine their action; and any substantial departure therefrom, resulting in an injury to a suitor, may subject their judgment to review and reversal by proceedings in error. Huntington & McIntyre v. Finch & Co., 3 Ohio St. 445; Taylor v. Fitch, 12 Ohio St. 169."

This rule, as thus limited, this court has consistently followed. McCann v. McLennan, 3 Neb. 25; Wise v. Frey, 9 Neb. 217, 220, 2 N.W. 375; Hansen v. Bergquist, 9 Neb. 269, 277, 2 N.W. 858; Volland v. Wilcox, 17 Neb. 46, 22 N.W. 71; Harris v. State, 24 Neb. 803, 40 N.W. 317; Symns v. Noxon, 29 Neb. 404, 45 N.W. 680; Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026; Bradley v. Slater, 55 Neb. 334, 75 N.W. 826; Young v. Estate of Young, 103 Neb. 418, 172 N.W. 49; Douglas County v. Broadwell, 96 Neb. 682, 148 N.W. 930; Winder v. Winder, 86 Neb. 495, 125 N.W. 1095; Coxe Bros. & Co. v. Omaha Coal, Coke & Lime Co., 4 Neb. (Unof.) 412; Coulton v. Pope, 77 Neb. 882, 110 N.W. 630; Citizens State Bank, v. Young, ante, p. 786.

In Colby v. Maw, 1 Neb. (Unof.) 478, Justice Sedgwick then...

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