Jager v. Grommesh, 7594
| Decision Date | 13 July 1956 |
| Docket Number | No. 7594,7594 |
| Citation | 77 N.W.2d 873 |
| Parties | Fred JAGER, Plaintiff and Respondent, v. Ralph GROMMESH, individually, and Claudette Grommesh, by Ralph Grommesh, her guardian ad litem, Defendants and Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. An appeal in a civil action may be taken from a judgment by serving and filing a notice of appeal within six months after written notice of the entry of judgment and from an order within sixty days after written notice of the order. Section 28-2704, NDRC 1943.
2. An appeal taken after the statutory time therefor has expired will be dismissed upon a proper motion made for such dismissal in the supreme court.
3. An order denying a motion for judgment notwithstanding the verdict is an appealable order.
4. An order denying a motion in the alternative for judgment notwithstanding the verdict or for a new trial is an appealable order.
5. Where an order denying a motion for judgment notwithstanding the verdict or an order denying a motion in the alternative for judgment notwithstanding the verdict or for a new trial has become final and is no longer appealable before an appeal from the judgment is taken, the order is determinative of the questions and issues that were or could have been presented by the motion upon which it was based and such questions and issues are not reviewable on appeal from the judgment.
Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiff and respondent.
Nilles, Oehlert & Nilles, Fargo, for defendants and appellants.
This is an appeal from a judgment rendered in favor of the plaintiff and against the defendants for damages for personal injuries and damage to the plaintiff's truck as the result of an accident involving a collision between a truck owned and driven by the plaintiff and a car owned by the defendant Ralph Grommesh and driven by his daughter Claudette Grommesh.
We are met by threshold questions of procedure arising from plaintiff's motion to dismiss the defendants' appeal and to summarily affirm the judgment from which the appeal is taken. The general ground for the motion is that the attempted appeal brings before this court for review no questions or issues of law or fact.
An understanding of the import of plaintiff's arguments and contentions requires a chronological statement of the steps taken in the district court which bear upon the defendants' right to a review in this court.
On March 31, 1955, the jury rendered a verdict in favor of the plaintiff for $1,700 personal injuries and $1,830 for damages to his truck and loss of use thereof. On April 7, 1955, the defendant served notice of hearing and motion for judgment notwithstanding the verdict or in the alternative for a new trial to which was attached specifications of the insufficiency of the evidence. On June 15, 1955, the court signed the following order:
'This matter came on to be heard before the Court on the 25th day of April, 1955 on defendants' motion for judgment, notwithstanding the verdict or the alternative for a new trial; and the Court, having reviewed the evidence and heard the arguments of counsel and having on the 9th day of June, 1955, issued its memorandum decision on the matter, and in accordance with said memorandum decision;
'It is ordered, that the defendants' motions for judgment notwithstanding the verdict, for a new trial and each of the said motions are hereby denied.'
This order was served on defendants' attorneys June 18 and filed in the office of the clerk of the district court June 20, 1955.
In the meantime judgment had been entered on the verdict in favor of the plaintiff April 11, 1955, and notice of entry thereof served April 13, 1955.
On October 11, 1955, the defendants caused to be served upon the plaintiff a notice of appeal from the judgment and also
'from the Order of said District Court, and the whole thereof, dated the 15th day of June, 1955, denying the defendant's motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.'
An appeal may be taken from a judgment by serving and filing the notice of appeal within six months after written notice of the entry of judgment and from an order within sixty days after written notice of the order. Section 28-2704, NDRC 1943.
The defendants having failed to serve and file a notice of appeal from the order as prescribed by statute, the plaintiff's motion to dismiss the appeal must prevail with respect to the order. The appeal from the order dated June 15, 1955, denying defendants' motion for judgment notwithstanding the verdict or in the alternative for a new trial is dismissed. Peterson v. Wolff, 68 N.D. 354, 280 N.W. 187.
We must now determine whether the same questions that were raised or could be raised as grounds for a new trial or for judgment notwithstanding the verdict under the defendants' alternative motion can be reviewed in this court upon appeal from the judgment. An approach to this problem requires that some consideration be given to the components of the alternative motion, namely a motion for a new trial and a motion for judgment notwithstanding the verdict. In Goodman v. Mevorah, 79 N.D. 653, 59 N.W.2d 192, we held that an order denying a motion for a new trial made after entry of judgment is an appealable order and may not be reviewed upon an appeal from the judgment alone. It was there further held that where the order denying the motion for a new trial had become final before an appeal from the judgment was taken the order was determinative of the questions and issues that were or might have been presented by the motion and such questions and issues were not reviewable on appeal from the judgment. However, that decision involves only a motion for new trial. We must now consider the effect of an order denying an alternative motion which includes both a motion for judgment notwithstanding the verdict and a motion for new trial.
By Chapter 133, SLND 1921, the legislature forbade the trial judge to grant a motion for directed verdict over the objection of the adverse party but permitted the court after verdict to direct the entry of a judgment notwithstanding the verdict if upon the evidence as it stood at the time of the motion for directed verdict the moving party was entitled to have a verdict directed in his favor. It also provided that an alternative motion might be made asking for a new trial and
'If the motion for judgment notwithstanding the verdict be denied, the supreme court, on appeal from the judgment, may order judgment to be entered, when it appears from the testimony that a verdict should have been so directed; and it may also so order on appeal from the whole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order.'
The quoted language was retained in subsequent amendments and reenactments down to and including Chapter 220, SLND 1945. During the period that this language was in effect we consistently held that an order denying a motion for judgment notwithstanding the verdict was not an appealable order. See cases cited in Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588.
In Welch Manufacturing Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849, decided in 1925, this court said:
'that, where a motion for a directed verdict has been denied and the moving party thereafter moves the court in the alternative that judgment be entered in his favor notwithstanding the verdict against him, or for a new trial, and the court denies the motion for judgment but grants (or denies) the motion for a new trial, the moving party may appeal from the order as a whole, and have the ruling on the motion for judgment notwithstanding the verdict reviewed in the Supreme Court.'
It should be noted that the decision involved an appeal from an order made upon an alternative motion and not an appeal from a judgment as is the situation before us.
Our search has not revealed a case, and none has been pointed out to us, involving the question of whether under the language we...
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