Johns v. Ruff

• Decision Date: 27 May 1903
• Citation: 95 N.W. 440,12 N.D. 74
• Parties: JOHNS v. RUFF
• Court: North Dakota Supreme Court

95 N.W. 440

12 N.D. 74

JOHNS v. RUFF

Supreme Court of North Dakota

May 27, 1903

Appeal from District Court, Wells County; S. L. Glaspell, J.

Action by John G. Johns against Chris. Ruff. Judgment for plaintiff. Defendant appeals.

Reversed.

Reversed and remanded, with directions.

Plinn H. Woodward, for appellant.

One desiring to challenge the sufficiency of evidence to support a verdict must either--

1. Request that a verdict be directed in his favor, or

2. Except to the charge of the court submitting questions of fact to the jury, or

3. Move for a new trial on the ground of the insufficiency of the evidence.

No other mode of raising the question of the sufficiency of the evidence is provided by law. Henry v. Mayer, 6 N.D 143, 71 N.W. 127. Insufficiency of the evidence to sustain a verdict can only be raised by a specification of wherein it is insufficient. Colby v. McDermont, 6 N.D. Rep 495, 71 N.W. 772; Henry v. Mayer, 6 N.D. Rep. 413 71 N.W. 127, Rev. Codes, section 5474; Mooney v. Donovan, 9 N.D. Rep. 93, 81 N.W. 50. A verdict of a jury, to which neither party has objected, should not be vacated by the court on its own motion, unless there has been such a disregard of instruction on the evidence in the case, that the court is at once satisfied without mature reflection or the aid of argument, that such verdict is the result of passion or prejudice, or was rendered under a misapprehension of the court's instructions, and the order should be promptly made on the coming in and entry of the verdict. Clement v. Barnes, 8 S.D. Rep. 421, 61 N.W. 1126; Gould v. Elevator Co., 2 N.D. 216, 50 N.W. 969; Flugel v. Henschel, 6 N.D. 205, 69 N.W. 195. If the court erred in not directing a verdict on its own motion and the jury rendered a general verdict, judgment must be entered on the verdict. Kellogg, Johnson & Co. v. Gillman, 3 N.D. 538, 58 N.W. 339. Motion at the close of testimony to direct a verdict in his favor, is a condition precedent to the right of a party to move for a judgment notwithstanding the verdict. Hemstead v. Hall, 66 N.W. 366; Netzer v. Crookston, 68 N.W. 1099; Sayers v. Harris, 87 N.W. 617, 11 Enc. Pl. & Pr. 920; Crane v. Knauf et al., 68 N.W. 79. A party is not entitled to judgment notwithstanding verdict in either trial or appellate court unless he asks for that relief on motion for a new trial. Kerman v. St. Paul City Ry. Co., 67 N.W. 71, and 68 N.W. 1099. Where motion after verdict is exclusively for judgment notwithstanding the verdict, and not in the alternative for that remedy or for a new trial, if the party is not entitled to a judgment as requested, he is not entitled, at least as a matter of right, to a new trial. Cruikshank v. St. P. F. & M. Ins. Co., 77 N.W. 958; Marquardt v. Hubner, 80 N.W. 617; Kraatz v. St. Cloud School District, 81 N.W. 533; Bragg v. Chicago, M. & St. P. R. Co., 83 N.W. 511. In case of irregular entry of judgment, motion is the proper remedy, whether it affects the jurisdiction or not. Thomas v. Tanner, 14 How. Pr. 426, 3 Wait's Pr. 668 and 4 Wait's Pr. 637; Railroad Co. v. Murphy, 19 Minn. 500; Covert v. Clark, 23 Minn. 539. When motion goes to the jurisdiction, motion will lie a year after the entry of judgment. Lee v. O'Shaughnessy, 20 Minn. 173. What may be done, may be undone, by motion Clopton v. Clopton, 88 N.W. 562, 15 Enc. Pl. & Pr. 356, 14 Enc. Pl. & Pr. 87; 14 Enc. Pl. & Pr. 81, 14 Enc. Pl. & Pr. 76 and 77. Unless a verdict is objected to, it should not be set aside by the court on its own motion, unless done at the incoming of the verdict. Clement v. Barnes, 61 N.W. 1126; Gould v. Duluth & Dakota Elevator Co., 2 N.D. 216, 50 N.W. 970; Flugel v. Henschel, 6 N D. 205, 69 N.W. 195. Under chapter 63, Laws of 1901, the verdict cannot be set aside and judgment given notwithstanding the verdict, unless there was a motion by either party at the close of the testimony, for a directed verdict in favor of the party making the motion, and such motion denied. Such motion is a condition precedent. Hemstead v. Hall, 66 N.W. 366; Netzer v. Crookston, 68 N.W. 1099; Sayers v. Harris, 87 N.W. 617, 11 Enc. Pl. & Pr. 920. That there was no sufficient evidence in this case to sustain the verdict, that the jury disregarded, or did not understand the instructions, were not sufficiently challenged by plaintiff, and verdict could not be set aside in consequence. Henry v. Maher, 6 N.D. 413, 71 N.W. 127; Colby v. McDermont, 6 N.D. 495, 71 N.W. 772. Where an attorney is employed by a party and that attorney hires another, the client believing that the attorney is responsible for the fees of such associate, is not responsible for the latter's fees, although he knew he was performing services. McCarthy v. Crump, 67 P. 343. Paying one associate counsel does not estop denying the fees of another. Evans v. Moher, 153 Ill. 561, 42 Ill.App. 255, 3 Am. & Eng. Enc. of Law 441. The burden is on the attorney employed as associate counsel to show ratification of such employment by client. Hughes v. Zeigler, 69 Ill. 38, 3 Am. & Eng. Enc. of Law (2d Ed.) 441.

Alfred E. Hawes, for respondent.

At common law, upon plaintiff's motion after verdict, the court would enter judgment for him, non obstante, only on plea in confession and avoidance, where confession was complete and matter pleaded in avoidance was no defense, and such right was tested only by the pleadings. Cruikshank v. St. P. F. & M. Ins. Co., 77 N.W. 958. By chapter 63, Laws 1901, such verdict is given to the party entitled to it, upon the evidence, upon compliance with the practice prescribed. Cruikshank v. St. P. F. & M. Ins. Co., supra. The father is the natural guardian of his infant child, and chargeable with its support, and medical and surgical services bestowed upon it. 3 Addison on Contracts 497, 3 Waite's Actions and Defenses, 851, section 5, 1 Parsons on Contracts, 385. Liable even if services were voluntary. 2 Addison on Contracts, 847. Patient is liable to an assisting physician, upon implied assumpsit, where previous request and promise of payment were implied by law. Garrey v. Stadler, 30 N.W. 787. A pleading which affirms and denies an essential fact shows no cause of action. 9 Cal. 47, 6 Enc. Pl. & Pr. 270. Plea of new matter should confess, impliedly or directly, that but for such new matter of avoidance, the action could be maintained. Morgan v. Hawkeye Ins. Co., 37 Ia. 357; Abbott v. Sartori, 11 N.W. 626. If judgment of court below is legally correct, its reasons therefor may be disregarded on review. Knight et al. v. Barnes et al., County Commissioners, 7 N.D. 599, 75 N.W. 904.

OPINION

MORGAN, J.

The complaint in this action sets forth a cause of action for services rendered the defendant's daughter by the plaintiff as a physician and surgeon at defendant's special instance and request. The answer admits the rendering of the services, but denies specially that such services were at defendant's special instance and request; and further alleges that such services were performed as an assistant to one Dr. Barr, and that said Barr agreed to pay said assistant out of the sum of $ 40, the agreed sum to be paid him for performing an operation on his infant daughter; and that the defendant never agreed to pay said plaintiff nor in any manner employed him. The defendant testified in support of his answer, and his testimony shows that the plaintiff was employed as an assistant at the suggestion of Dr. Barr of the necessity of employing him as an assistant. He admitted that he was aware that the defendant was to assist in said operation, but denies that he agreed in any manner to pay him or that he employed him, and says it was agreed that said Dr. Barr was to pay said plaintiff. The defendant was not present at the operation. He had no conversation whatever with the plaintiff until after the services were performed. There was a verdict for the defendant in district court. That court ordered judgment for the plaintiff for $ 15, the undisputed value of his services, notwithstanding the verdict, and the defendant appeals from that judgment.

The plaintiff moves to dismiss the appeal and for an affirmance of the judgment, upon the grounds: "(1) That appellant's brief contains no true and concise statement of the facts material to the points of law to be argued with reference to pages or folios of the abstract; (2) that appellant's brief contains no assignment of error; (3) that the statement of the case as settled contains no specification of errors." We do not find that the record sustains the last contention. The statement of the case was amended in due time on notice, and a specification of errors incorporated therein by an order of the court. The brief contains no assignments specifically denominated as such. It does, however, point out the two grounds on which reliance is placed for a reversal of the judgment appealed from, and this is done in the following words: "So that from defendant's view there are practically two propositions presented by this appeal, viz.: Did the district court err in granting plaintiff's motion for judgment notwithstanding the verdict, and in denying defendant's of February 24 to set aside the order of January 23, 1902?" These two questions are the only ones argued in the brief, and the plaintiff has argued the correctness of these two rulings only in his brief. Although these matters are not properly assigned as errors, and the brief does not refer to the pages or folios of the abstract, as required by rule 14 (74 N.W. x), still the total absence of these requirements is not ground for the dismissal of the appeal. The appeal to this court was...