Hansen v. Northern Pacific Railway Company, a Railway Corporation
| Decision Date | 23 December 1930 |
| Citation | 233 N.W. 848,60 N.D. 254 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Stutsman County Jansonius, J.
Dismissed.
P W. Lanier, for appellant.
A motion for judgment notwithstanding the verdict must be based upon settled statement of the case at the time the trial court acted upon the motion. 7 Bancroft's Code Practice § 6145; Barcus v. Prokop, 29 S.D. 39, 135 N.W. 756.
The appealing party must present to the supreme court the evidence and record offered in support of the motion in the record, and no other record is required of the appealing party. Jordan v. Johnson, 76 Neb. 16, 106 N.W. 999.
It is necessary to show affirmatively that all of the evidence so presented and considered is included. 8 Bancroft's Code Practice, § 6671.
The record must effectively show that error was committed and that the plaintiff in error was entitled as a matter of law to a different judgment or order from that complained of. Howlett v. Bank, 48 N.D. 933, 188 N.W. 172.
Conmy, Young & Conmy, for respondents.
"Under § 7044, Revised Codes of 1905, this court is expressly authorized, in the cases enumerated therein, to direct judgment non obstante veredicto notwithstanding the prior entry of judgment in the trial court." Schumacher v. Great Northern R. Co. 23 N.D. 231, 136 N.W. 85.
The plaintiff brought action against the Northern Pacific Railway Company as initial carrier and a number of other railroad companies as connecting carriers to recover damages alleged to have been sustained as a passenger while on the lines of the connecting carriers. For lack of proper service the action as against the connecting carriers was dismissed. It proceeded to trial against the Northern Pacific Railway Company alone and at the trial a verdict was rendered in favor of the plaintiff, upon which judgment was promptly entered. Thereafter the defendant moved for judgment notwithstanding the verdict, which motion was based upon a motion for directed verdict made at the close of the trial and all the records and files in the action, but not upon a settled statement of the case. Schumacher v. Great Northern R. Co. 23 N.D. 231, 136 N.W. 85; Kanable v. Great Northern R. Co. 45 N.D. 619, 178 N.W. 999. This motion being granted, the plaintiff appeals. The notice of appeal reads:
"Please Take Notice: That the plaintiff herein appeals to the Supreme Court of the State of North Dakota, from the order of the Honorable Fred Jansonius, Judge of the District Court for the Fourth Judicial District in and for said state, dated March 25th, 1930, and filed and entered on or about the 28th day of March, 1930, said order setting aside judgment rendered in favor of plaintiff and dismissing said...
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