Misty Management Corp. v. First Judicial Dist. Court In and For Ormsby County
Decision Date | 29 May 1967 |
Docket Number | No. 5282,5282 |
Citation | 428 P.2d 196,83 Nev. 253 |
Parties | MISTY MANAGEMENT CORPORATION and Tri-Aviation Corporation, and the State of Nevada upon the relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. The FIRST JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF ORMSBY, Honorable Richard L. Waters, Jr., the Judge thereof, and Thomas Daniel Wyatt, Respondents. |
Court | Nevada Supreme Court |
E. M. Gunderson Las Vegas, Ball Hunt & Hart and George E. McGill, Long Beach, Cal., for petitioners.
Martillaro & Bucchianeri, Daniel R. Walsh, Carson City, for respondents.
OPINION ON PETITION FOR REHEARNING
By petitioner for rehearing, Wyatt re-asserts the contention that his constitutional right to a jury trial was violated when the court set aside the jury verdit and entered judgment n.o.v. We rejected that contention. See, Misty Management v. District Court, 83 Nev. ---, 426 P.2d 728 (1967). We again reject it for the reasons initially expressed, but wish to add a further comment on the point.
The action commenced by Wyatt against Misty Management was primarily an equitable proceeding--a suit to cancel a deed for fraud. Consequently, Wyatt could not demand a jury trial as a matter of right. A jury was allowed, and its verdict was merely advisory to the court. Musgrave v. Casey, 68 Nev. 471, 235 P.2d 729 (1951); Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547, 161 P.2d 350 (1945).
Rehearing denied.
Respondents in their petition for rehearing urge several grounds: (a) the court has overlooked, misapplied, or failed to consider a statute, decision, or principle directly controlling; (b) the court has overlooked or misconceived some material facts; (c) the court has overlooked or misconceived a material question in the case; (d) there is serious doubt as to the validity, correctness, or adequacy of precedent relied upon and the case itself is of great precedent potential or of grave public concern. The opinion in petition for rehearing in the Nevada case of Gershenhorn v. Walter R. Stutz Enterprises, 72 Nev. 312, 306 P.2d 121 (1956), quotes with approval from Rehearing in American Appellate Courts, 44 Cal.L.Rev. 627, at page 658, as follows, The four grounds for rehearing are suggested in the article quoted as typical. A fifth ground is suggested in the article at page 640 as, 'The standard, perhaps more precisely called ideal, which appears almost everywhere is that rehering will be granted to avoid doing substantial injustice.' This ground is also relied upon by respondents. Thus, in a hard case such as this, and where rehearing is sought and opposed with great earnestness, we should carefully consider the reasons for and against the proposition.
In may opinion the principal ground upon which we should grant rehearing in this case is what I fear to be a misapplication of a decision relied upon by the court. The court in its decision says at page 729 of 426 P.2d (Advance Opinion No. 5282, filed April 17, 1967), The Neely case was to some extent analyzed in my dissenting opinion, but it deserves more careful analysis than given it either by the majority of the court or me, if it is to control the decision in this case.
In Neely, supra, at page 1075 of 87 S.Ct., Mr. Justice White said,
The question presented by the case as stated by him on page 1076 is, 'The question here is whether the Court of Appeals, after reversing the denial of a defendant's Rule 50(b) motion for judgment notwithstanding the verdict, may itself order dismissal or direct entry of judgment for defendant.' He then added,
The Neely case decides a different issue than is involved here. Nor do I have any particular quarrel with the holding, but it is, in may opinion, misapplied as authority in this case.
Mr. Justice Black in his dissenting opinion in Neely succinctly points up the issue with which we are concerned, when he said, Further, he says in a footnote, 'Certainly, if there were sufficient evidence to go to the jury, then Rule 38(a) and the Seventh Amendment preclude the Court of Appeals from directing a dismissal of petitioner's case after she had obtained a jury verdict.'
The exact same issue is involved here. The trial judge was precluded by NRCP 38(a) 1 and the Nevada Constitution, Art. 1, Sec. 3, 2 from granting a judgment n.o.v. where Wyatt obtained a jury verdict on disputed evidence. A judgment n.o.v. can be constitutionally granted only where, as a matter of law, reasonable men could not draw different inferences from the facts. It must be a one-way verdict. Any different rule gives Nevada trial judges power to deny absolutely the right of a trial by jury in any civil case.
The majority holds that litigation must come to an end and that the cause was res judicata when Wyatt's appeal was dismissed. I agree with that rule, except when its effectiveness is accomplished at the expense of a constitutional right to trial by jury.
The rule relating to judgments n.o.v. is the same as that relating to directed verdicts. In Bliss v. DePrang, 81 Nev. 599, 602, 407 P.2d 726 (1965), this court said,
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