Hemstad v. Hall

• Decision Date: 07 February 1896
• Citation: 64 Minn. 136,66 N.W. 366
• Parties: HEMSTAD v HALL.
• Court: Minnesota Supreme Court

64 Minn. 136

66 N.W. 366

HEMSTADvHALL.

Supreme Court of Minnesota.

Feb. 7, 1896.

(Syllabus by the Court.)

1. In a motion for judgment notwithstanding the verdict, it was stated, in an affidavit, and in the judge's order granting the motion, that certain proceedings took place on the trial. A settled case was subsequently made and filed, which certified that it contained all the evidence introduced, and all the proceedings had, but which failed to disclose that any such proceedings were had as above stated. Held, the settled case must control, and cannot be contradicted or impeached by the statements in the order and affidavit.

2. It is error to grant a motion, made under chapter 320, Laws 1895, for judgment notwithstanding the verdict, unless the moving party made a motion to direct a verdict in his favor at the close of the testimony.

3. Immediately on recording the verdict in plaintiff's favor, the trial court set it aside on its own motion, and neither party objected thereto. Thereafter defendant moved for judgment notwithstanding the verdict, under said chapter 320. The motion was granted, and, in the order granting the same, the court of its own motion set aside said order setting aside the verdict. Held, when defendant made his motion, the verdict had been set aside, and the case stood for trial though no trial had ever been had. There was then no trial, with its evidence or proceedings, on which he could move for the statutory verdict to be entered by the court's order, under said chapter 320, and the order of the court, of its own motion, restoring and reinstating the evidence and proceedings, did not cure the defective character of defendant's motion, and it was error to grant the same.

Appeal from district court, St. Louis county; S. H. Moer, Judge.

Action by Mathias O. Hemstad against Martin Olson Hall. Judgment for defendant, and plaintiff appeals. Reversed.

John Rustgard, for appellant.

Smith, McMahon & Mitchell, for respondent.

CANTY, J.

In this action the jury returned a verdict for plaintiff for one cent. Immediately after the verdict was recorded, it was set aside by the court of its own motion, and neither party objected thereto. Thereafter defendant moved for judgment notwithstanding the verdict, which motion was made on “the files, records, proceedings, and testimony herein,” and upon the affidavits of plaintiff's attorney, in one of which he stated “that, at the close of the testimony, defendant moved the court for a direction of a verdict as to the cause of action set out in the complaint.” The court below granted the motion, and the order granting the same, so far as here material, reads as follows: “The court being duly advised in the premises, and said court being satisfied that the motion, made by defendant herein at the close of the testimony, for direction of verdict as to the cause of action set out in the complaint, should have been granted, the ruling of the court thereon having been duly excepted to, now, therefore, it is hereby ordered that the defendant herein have judgment against the plaintiff for his costs and disbursements notwithstanding the verdict herein. It further appearing, from the records herein, that the verdict was set aside by the court of its own motion, without the consent of either plaintiff or defendant, and the defendant not having consented thereto, now, therefore, for the purpose of correcting the records herein, it is further ordered that the order so made setting aside said verdict be vacated, and the judgment given for defendant as above ordered.” No motion was ever made by either party to reinstate the...