Olson v. Ottertail Power Co.

• Decision Date: 25 September 1934
• Docket Number: No. 6149.,6149.
• Citation: 256 N.W. 246,65 N.D. 46
• Parties: OLSON v. OTTERTAIL POWER CO. et al.
• Court: North Dakota Supreme Court

65 N.D. 46

256 N.W. 246

OLSON

v.OTTERTAIL POWER CO. et al.

No. 6149.

Supreme Court of North Dakota.

Aug. 28, 1934.

Rehearing Denied Sept. 25, 1934.

Syllabus by the Court.

1. A motion for a judgment notwithstanding the verdict, which is not coupled with an alternative motion for a new trial, cannot be made after the judgment is entered.

2. When a motion for a judgment notwithstanding the verdict is not made until after the entry of judgment, and subsequently an order is made which grants the motion and vacates the judgment and orders judgment notwithstanding the verdict, such order is appealable.

Appeal from District Court, Ramsey County; Kneeshaw, Judge.

Action by Carl Adolph Olson against the Ottertail Power Company and others. From an order vacating a judgment for plaintiff pursuant to the verdict and ordering a judgment for defendants notwithstanding the verdict, plaintiff appeals.

Reversed.

NUESSLE and BURKE, JJ., dissenting.

George A. McGee, Harry E. Dickinson, E. R. Sinkler, and G. O. Brekke, all of Minot, for appellant.

Conmy, Young & Conmy, of Fargo, for respondents.

MOELLRING, Judge.

This case comes to us on an appeal presented by the plaintiff. The action is based upon damages alleged to have resulted from negligent acts of the defendants. A trial was had before the court and a jury, resulting in a verdict in plaintiff's favor. At the close of the plaintiff's case, and again at the close of the entire case, defendants made a motion for a directed verdict, upon the grounds that there is no evidence that the defendants proximately caused injury and loss to the plaintiff, that the evidence proves contributory negligence, and that there is no evidence in the case supporting any proper measure of damages.

On November 16, 1931, and two days after the verdict was returned, defendants made an application to stay execution for the purpose of presenting a motion for judgment notwithstanding the verdict. Thereupon the trial court issued an order staying all further proceedings except entry of judgment until January 31, 1932.

The record also shows that on November 23, 1931, the trial court made its order directing that judgment be entered on the verdict of the jury, and on November 27, 1931, judgment was entered for damages and costs against the defendants.

Thereafter and on December 21, 1931, attorneys for the defendants gave notice of a motion for judgment notwithstanding the verdict, which notice, other than the formal parts, reads as follows: “Please take notice That on the 5th day of January, 1932, at 10:00 A. M. of said day, at the Court's Chambers, in the Court House in the City of Grafton, North Dakota, the defendants herein will make a motion before the Honorable W. J. Kneeshaw, Judge of the District Court, that judgment be entered herein notwithstanding the verdict, said motion being based specifically upon the motion for a directed verdict made at the close of the entire case, and upon all the records and files in this action, and said motion being made under section 7643, 1925 Supplement to the compiled statutes.”

Hearing was had on the motion January 5, 1932, pursuant to the notice; and thereafter, on July 29, 1932, the trial court, by its order, granted the motion of the defendants.

On September 24, 1932, plaintiff took an appeal from this order. The appeal came on regularly for hearing before this court, at which time defendants made a motion to dismiss the appeal on the grounds that no appeal will lie from an order for judgment, or interlocutory order, and that the order appealed from is not an appealable order.

The foregoing is a brief history of the case.

Defendants' motion to dismiss challenges appellate jurisdiction. The notice of appeal states that the appeal is taken from the order of July 29, 1932. This order grants defendants' motion for judgment notwithstanding the verdict, sets aside the previous judgment entered, dismisses the case, and also orders a new judgment for costs in favor of the defendants.

Defendants contend that the order is not an order affecting a substantial right determinative of the case and therefore is not appealable. It is well settled in this state that an appeal from an order timely made, granting a motion for judgment notwithstanding the verdict, is not appealable, for the reason that an appeal can be taken from the judgment entered thereon, which is the proper procedure. Section 7841, Comp. Laws 1913; Warren v. Slaybaugh et al., 58 N. D. 904, 228 N. W. 416;Turner v. Crumpton, 25 N. D. 134, 141 N. W. 209;Oliver v. Wilson, 8 N. D. 590, 80 N. W. 757, 73 Am. St. Rep. 784.

[1] On the other hand, plaintiff contends that the order in question is more than a mere order for judgment; that the order also sets aside a judgment previously entered, which gives it the character of an order affecting a substantial right, from which an appeal may be taken. Plaintiff contends, further, that the motion for judgment notwithstanding the verdict came too late, as the motion was made after judgment was entered pursuant to the verdict, that the order and judgment based thereon are void, and that therefore the order is one made after judgment, which is appealable under subdivision 2, § 7841, Comp. Laws 1913.

At common law a party, to avail himself of a motion for judgment non obstante veredicto, must present the same before judgment is entered on the verdict. The remedy could be employed by the plaintiff only. In most jurisdictions its use has been broadened either by statutory enactments or by judicial construction, so that the remedy is available to all parties. Hay v. Baraboo, 127 Wis. 1, 105 N. W. 654, 3 L. R. A. (N. S.) 84, 115 Am. St. Rep. 977;Kirk v. Salt Lake City, 32 Utah, 143, 89 P. 458, 12 L. R. A. (N. S.) 1021; L. R. A. 1916E, 829; Ann. Cas. 1913A, 1023, 1024.

These modifications, however, did not affect the common-law rule of timely presentation. It is uniformly held that the motion must be made before judgment is entered, and a failure to do so, within such time, is fatal. Ruling Case Law states the rule thus: “In all cases, even in jurisdictions which have relaxed the strict rule of the common law limiting the right to judgment non obstante veredicto to the plaintiff and excluding all considerations of the evidence, it is still essential that the motion be made before judgment, as it is too late after judgment.” 15 R. C. L. p. 608, § 47. See, also, State v. Commercial Bank, 6 Smedes & M. (Miss.) 218, 45 Am. Dec. 280;Hurt v. Ford et al., 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823;Wheeler v. Preston et al., 107 S. W. 274, 32 Ky. Law Rep. 791;Yerkes v. Antrim Circuit Judge, 200 Mich. 443, 166 N. W. 976;Zilka v. Graham et al., 26 Idaho, 163, 141 P. 639;Hillis v. Kessinger, 88 Wash. 15, 152 P. 687, Ann. Cas. 1917D, 757;Neill v. Metropolitan Casualty Insurance Co., 135 Tenn. 28, 185 S. W. 701, L. R. A. 1916E, 825;First National Bank of Aberdeen v. Thompson, 55 S. D. 629, 227 N. W. 81; 1 Freeman on Judgments (5th Ed.) p. 18; 33 C. J. 1187.

This universal rule, based upon the common law, was the accepted practice in this state prior to the enactment of chapter 63, Session Laws 1901 (section 7643, Comp. Laws 1913). This enactment contains the first mention of the subject in our statutes. Richmire v. Elevator Co., 11 N. D. 453, 92 N. W. 819.

By this enactment a motion for judgment notwithstanding the verdict could be coupled with a motion for a new trial, and such motion in the alternative was available either before or after entry of judgment. This remedy, in its alternative form, is merely cumulative, and, except as to those instances coming within its purview, did not disturb the existing practice with reference to a motion for judgment notwithstanding the verdict, or a motion for a new trial, when made separately. Nelson v. Grondahl, 12 N. D. 130, 96 N. W. 299.

It was held, however, that, when the motion was made in the alternative, the granting of a new trial precluded a review of the trial court's actions in denying judgment non obstante. Stratton v. Rosenquist, 37 N. D. 116, 163 N. W. 723.

The construction placed upon the statute in the case of Stratton v. Rosenquist, supra, evidently inspired the further amendment, as found in chapter 133, Session Laws, 1921.

This amendment provides that, on an appeal from the whole order, on a motion made in the alternative, the appellate court can review the whole order, where the motion has been denied in whole or in part; whereas, before the amendment, the granting of a part of the motion precluded a review of that part which was denied. This chapter was amended by chapter 335, Session Laws 1923. By this latter amendment, new matter is added; otherwise the provisions of the law are retained in identical language. Section 7643, 1925 Supplement to the Compiled Laws of 1913.

There is nothing in this statute, by direct authorization or by implication, that permits a motion for judgment notwithstanding the verdict, standing alone, to be made after judgment. The statute does not contemplate such contingency. Nelson v. Grondahl, supra.

From the foregoing we must come to the conclusion, therefore, that, save and except as to those instances that come within the purview of this statute, the universal rule based upon the common law, which requires a motion non obstante to be presented before entry of judgment, still obtains in this state.

Defendants contend that the recognized practice in this state has given the same character to a motion for judgment notwithstanding the verdict as for a new trial, in that the same may be made after judgment and with the effect that the granting of the motion, of itself, sets aside the judgment. There is no provision in our statutes indicating that the granting of a motion for judgment notwithstanding the verdict ipso facto sets aside the judgment; nor can any such conclusion be arrived at from the common-law rule as it exists in this state.

We are aware of the fact that the trial court has...