Lemke v. Merchants Nat. Bank & Trust Co.
| Decision Date | 23 August 1935 |
| Docket Number | No. 6324.,6324. |
| Citation | 66 N.D. 48,262 N.W. 246 |
| Court | North Dakota Supreme Court |
| Parties | LEMKE et al. v. MERCHANTS NAT. BANK & TRUST CO. et al. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A motion for judgment notwithstanding the verdict, where not coupled with an alternative motion for a new trial, cannot be made after judgment is entered. Olson v. Ottertail Power Co. (N. D.) 256 N. W. 246, 95 A. L. R. 418, followed.
2. An order vacating a judgment and granting a motion, not made until after entry of judgment, for judgment notwithstanding the verdict, is an appealable final order. Olson v. Ottertail Power Company (N. D.) 256 N. W. 246, 95 A. L. R. 418, followed.
3. Though a motion for judgment notwithstanding the verdict, where not coupled with an alternative motion for a new trial, cannot be made after judgment is entered, yet, where a verdict is directly challenged by such a motion, upon grounds that would warrant the relief prayed for if the motion were timely, an order granting such motion will be held effective to grant the lesser relief by way of a new trial.
Appeal from District Court, Cass County; M. J. Englert, Judge.
Action by William Lemke and another, copartners, doing business under the firm name of Lemke & Weaver, against the Merchants National Bank & Trust Company, as trustee for Chris B. Hanson, and another. Verdict and judgment for plaintiffs, and from an order granting judgment for named defendant notwithstanding verdict, plaintiffs appeal.
Modified and affirmed.
Usher L. Burdick and Lemke & Weaver, all of Fargo, for appellants.
Nilles, Oehlert & Nilles, of Fargo, for respondent.
This action was brought to recover for legal services rendered by the plaintiffs and appellants. They had a verdict and judgment was entered thereon. Thereafter, appropriate foundation motions having been made at the close of the plaintiffs' case and again at the close of the whole case, the respondent Merchants National Bank moved to vacate the verdict against it and for judgment notwithstanding the verdict on the ground that the evidence was not sufficient to sustain it. This motion was granted. The judgment as to the respondent was vacated, annulled, and set aside, and judgment notwithstanding the verdict was entered in its favor. Thereupon the appellants perfected this appeal from the order thus made. The appeal is on the judgment roll.
[1][2] Appellants' contention is that the motion for judgment notwithstanding the verdict was not timely for the reason that it was made after judgment entered; that therefore the trial court was without jurisdiction to entertain it or to order judgment notwithstanding the verdict for the respondent. Appellants cite in support of this contention the case of Olson v. Ottertail Power Co. (N. D.) 256 N. W. 246, 249, 95 A. L. R. 418. On the other hand, respondent contends that the doctrine in the Olson Case should be repudiated and the case overruled; that if this be done the appeal in the instant case must be dismissed for the reason that the order for judgment notwithstanding the verdict is not appealable. Turner v. Crumpton, 25 N. D. 134, 141 N. W. 209. The respondent further insists that even if the Olson Case be not overruled, nevertheless it is distinguishable from the case at bar for the reason that the motion on which judgment notwithstanding the verdict was ordered in the instant case was, in fact, a motion in the alternative for a new trial or for judgment notwithstanding the verdict and accordingly was timely made after judgment entered. See section 7643, C. L. 1913, as amended; Schumacher v. Great Northern R. Co., 23 N. D. 231, 136 N. W. 85.
The appellants insist that the motion made was for judgment notwithstanding the verdict only and that therefore the court had no jurisdiction to entertain it. The verdict was returned on December 6, 1933. Judgment in favor of plaintiffs and appellants was at once entered on the verdict. Thereafter and on December 8, respondent's motion was made. This motion was denominated a motion for judgment notwithstanding the verdict. The motion, however, was to vacate and set aside the verdict as returned by the jury and for judgment for the respondent notwithstanding that verdict. The matter was argued on December 18, and thereafter the court granted the motion, vacated, annulled, and set aside the judgment theretofore entered, and ordered judgment for the respondent. If the motion be considered merely as a motion for judgment notwithstanding the verdict, under the rule in the Olson Case the court erred in granting it and the order and judgment must be reversed, and the judgment on the verdict reinstated.
The case of Olson v. Ottertail Power Co., supra, on which the appellants rely, was, in many respects, identical with the instant case. The motion for judgment notwithstanding the verdict was identical with the motion in the instant case and the order entered granting that motion was identical with the order from which the appeal in the instant case is taken. The respondent contends that the rule laid down in the Olson Case was contrary to the long-accepted practice in this state and that it should now be repudiated and the case overruled. The holding in the Olson Case was arrived at only after deliberate consideration by this court, the present Chief Justice and the writer of this opinion dissenting, and we are not inclined to overrule it at this time. We may say in passing that other than as it affects the instant case our holding in this regard is of little importance. The Legislature has seen fit to provide by statute that a motion for judgment non obstante may be made after judgment entered. See chapter 245, S. L. 1935. In any event, consistent with the rule of the Olson Case, we now hold that the court erred in ordering judgment notwithstanding the verdict on the motion as made here.
The respondent seeks to sustain the order for judgment non obstante entered in the instant case on the theory that the motion made was in fact a motion in the alternative for a new trial or for judgment notwithstanding the verdict. We think, however, that it cannot be said that the motion as made was intended to have this effect. A similar contention was considered in the Olson Case and was rejected. It does not follow, however, that in the instant case the appellants are entitled to have the order in question set aside, the judgment entered under it vacated, and the judgment entered on the verdict reinstated. It seems to us that the motion as made by the respondent, however denominated, was wide enough to invoke the jurisdiction of the trial court. The motion was not only for judgment notwithstanding the verdict; it was coupled with a motion to set the verdict aside. Though judgment had been entered on the verdict the trial court retained jurisdiction to correct any errors that might have occurred if its power in that regard were properly invoked. See Plano Manufacturing Co. v....
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