Krepcik v. Interstate Transit Lines
| Decision Date | 21 July 1949 |
| Docket Number | 32594. |
| Citation | 38 N.W.2d 533,151 Neb. 663 |
| Parties | KREPCIK v. INTERSTATE TRANSIT LINES. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Before the act of 1947 (Laws 1947, c. 85, p. 262) a judgment notwithstanding the verdict could only be rendered when the pleadings of the party in whose favor the verdict was given showed a right to judgment in favor of the other party.
2. If the verdict was not sustained by the evidence or was contrary to law, or if the court was convinced it erred in submitting the case to the jury, the remedy, at that time, was a new trial and not a judgment of dismissal of the case.
3. A ruling of the court on a motion for an instructed verdict could not at that time, be reviewed by this court unless it had been assigned as error in a motion for a new trial by the party aggrieved thereby.
4. If a motion for an instructed verdict was granted, in the absence of a motion for a new trial, the review in this court was, at that time, limited to a determination that the pleadings did or did not support the judgment.
5. The act of 1947 (Laws 1947, c. 85, p. 262) provided a new procedure in each of the instances above referred to in all cases within the provisions thereof.
6. The purpose of the act (Laws 1947, c. 85, p. 262) was to prevent needless cost and effort, and to simplify and expedite the final disposition of litigation.
7. A litigant has no vested right in any mode of procedure.
8. The manner of appeal is statutory, and one who complies with the requirements of the applicable statute is entitled to a review of his case within the scope provided by law.
9. The primary purpose of a motion for a new trial is to enable the court to correct errors occurring at the trial of a cause.
10. The issue raised by a motion for judgment, or in the alternative for a new trial, as authorized by the act of 1947, is one of law it requires a mere examination of the record made on the trial and a determination of the legal questions raised by the motion.
11. A motion for a new trial is not necessary to a review in this court on appeal of any order made by authority of the act of 1947 (Laws 1947, c. 85, p. 262).
William S. Padley, Gothenburg, Beatty, Clarke, Murphy & Morgan, North Platte, for appellant.
Robert B. Hamer, Omaha, J. G. McIntosh, North Platte, T. F. Hamer, G. C. Holdrege, Omaha, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
A motion by appellee to affirm the judgment of the trial court has been submitted. It presents a novel and important question of procedure that should be determined before further proceedings are had in this case.
This is an action for damages for the alleged wrongful death of appellant's decedent and damages for the destruction of a truck owned and operated by the deceased, occasioned by a collision with it of a bus of the appellee.
The defense was a denial by appellee of negligence on its part and a charge of contributory negligence on the part of the deceased. Appellee at the close of all of the evidence made a motion for a directed verdict in its favor. The motion was denied. Appellant recovered a verdict on the two causes of action alleged by her. Appellee, within the time allowed therefor, moved to have the order denying its motion for a directed verdict and the verdict vacated, to have an order sustaining its motion for a directed verdict, and for judgment in its favor upon each of the causes of action, or, in the alternative, an order agranting a new trial. The motion for judgment or a new trial was heard and the court found that appellant as a matter of law was prevented from any recovery because the negligence of her decedent proximately causing the collision and injuries was, as a matter of law, more than slight, and any negligence of appellee was less than gross in comparison with the negligence of the decedent. The court vacated the verdict and all proceedings subsequent to the motion of appellee for a judgment in its favor, sustained its motion, and dismissed the case with prejudice. Appellant gave timely notice of appeal and made a deposit in lieu of costs on November 24, 1948. Appellant did not make a motion for a new trial after the finding and judgment of the court in favor of appellee. The transcript filed in this court on December 16, 1948 fails to show any motion for a new trial made by appellant.
A supplemental transcript filed several months later shows that appellant filed a motion for a new trial in the office of the clerk of the district court on November 26, 1948, two days after the filing by her of notice of appeal.
Appellee by its motion contends that the answer of appellee alleges defenses; that the district court had jurisdiction to set aside the verdict and to make a finding and to enter a judgment in favor of appellee; that the appeal having been taken and perfected, without appellant having filed a motion for a new trial after the verdict of the jury was vacated, a finding made and a judgment entered by the trial court in favor of appellee, this court in the exercise of its appellate jurisdiction is limited solely to a determination that the judgment is or is not supported by the pleadings; that the position of appellant is that the judgment of the trial court is not supported by the evidence, but that this question cannot be considered or determined by this court because of the failure of appellant to interpose a timely and appropriate motion for a new trial.
A district court was not, prior to an act of the Legislature of 1947 (Laws 1947, c. 85, p. 262), authorized to render a judgment notwithstanding the verdict except where, upon the statements in the pleadings, one party was entitled by law to a judgment in his favor. Where the pleadings did not show a right to a judgment, the court could not disregard a verdict and enter such a judgment as the evidence justified. If the verdict was not sustained by the evidence or was contrary to law, the remedy was, on motion therefor, to award a new trial. If the trial court was convinced it erred in submitting the case to the jury and should have directed a verdict, the remedy was a new trial, not a judgment of dismissal. S. 25-1315, R.S.1943; Winterson v. Pantel Realty Co., 135 Neb. 472, 282 N.W. 393. The limitation of this procedure was thought to be unjust because it sometimes coerced the losing party to compromise or abandon legal rights involved in the case or to suffer the delay, expense, and effort of another trial upon what frequently proved to be substantially the same evidence. It was believed that if material error occurred in the case during the trial and this was discovered or determined upon further consideration after the trial when there was better opportunity for further study, the court should be authorized to grant a new trial, or without another trial, to render judgment for the party entitled thereto as a matter of law, upon the evidence which had been produced. It was because of this that the Legislature of 1947 changed the rule and prescribed a new procedure in this regard. Laws 1947, c. 85, p. 262; Ss. 25-1315.02 and 25-1315.03, R.S.Supp., 1947; Patrick v. Union Central Life Ins. Co., 150 Neb. 201, 33 N.W.2d 537.
This was within the power of the Legislature. A litigant has no vested right in any mode of procedure. Lovelace v. Boatsman, 113 Neb. 145, 202 N.W. 418; Department of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277.
The mode and manner of appeal is statutory, and a litigant who complies with the requirements of the applicable statute is entitled to a review of his case to the extent of the scope provided by law. Larson v. Wegner, 120 Neb. 449, 233 N.W. 253; Barney v. Platte Valley Public Power and Irrigation District, 144 Neb. 230, 13 N.W.2d 120.
At the time the act of the Legislature of 1947 above referred to became effective, it was a part of the procedure of this state that if a motion for a directed verdict was made during the trial of the cause, the ruling of the court thereon could not be reviewed by this court unless it was, by the party aggrieved by it, assigned as error in a motion for a new trial, and a ruling thereon secured in the trial court. Albright v. Peters, 58 Neb. 534, 78 N.W. 1063; Link v. Reeves, 3 Neb. (Unoff.) 383, 91 N.W. 506. See, also, Waxham v. Fink, 86 Neb. 180, 125 N.W. 145, 28 L.R.A.,N.S., 357, 21 Ann.Cas. 301. A failure to observe this requirement, if the motion for an instructed verdict was sustained, limited the review in this court to a determination that the pleadings did or did not support the judgment rendered on the verdict in accordance with the direction of the court. Tait v. Reid, 91 Neb. 235, 136 N.W. 39; Shipley v. McNeel, 149 Neb. 790, 32 N.W.2d 639.
The answer of the appellee alleges defenses to the causes of action of the appellant, and the pleadings support the judgment. If the act of the Legislature of 1947 did not relieve the appellant of the necessity of interposing in this case a motion for a new trial, and securing the ruling thereon before invoking the jurisdiction of this court, the motion of appellee to affirm the judgment should be granted.
The act of 1947, to the extent pertinent to this inquiry, provides that when a motion for a directed verdict made at the conclusion of all of the evidence is not granted, the court is authorized to submit the case to the jury 'subject to a later determination of the legal questions raised by the motion' and the party who made the motion, within the time limited, has the right to ask the court to vacate the verdict and any judgment entered thereon, to move that judgment be entered in accordance with 'his motion for a directed verdict;' and such a judgment 'is an...
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