Paich v. Northern P. Ry. Co.

• Decision Date: 23 July 1915
• Docket Number: 12082.
• Court: Washington Supreme Court
• Parties: PAICH v. NORTHERN PAC. RY. CO.

150 P. 814

86 Wash. 379

PAICH v. NORTHERN PAC. RY. CO.

No. 12082.

Supreme Court of Washington, En Banc.

July 23, 1915

Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

On motion for rehearing. Motion granted, former decision overruled, judgment reversed, and cause remanded.

For former opinion, see 82 Wash. 581, 144 P. 1919.

Morris C.J., and Mount and Crow, JJ., dissenting.

Jay C Allen and J. H. Allen, both of Seattle, for appellant.

C. H Winders, of Seattle, for respondent.

PARKER, J.

This cause is before us upon rehearing. It was disposed of in favor of respondent by the decision of Department 1, rendered December 15, 1914, reported in 82 Wash. 581, 144 P. 919. Having considered the oral argument and briefs presented by counsel upon rehearing, we are led to the conclusion that the department decision is erroneous, in that it affirmed the judgment notwithstanding the verdict rendered by the superior court, which judgment was based upon a motion made therefor by counsel for respondent after a judgment had been rendered in accordance with the verdict.

After reviewing the case upon the merits the department decision briefly disposes of the question of the power of the superior court to render the judgment notwithstanding the verdict as follows:

'Appellant submits the contention that the lower court was powerless to grant the judgment complained of. Respondent had challenged the sufficiency of the evidence, both at the conclusion of appellant's case and at the conclusion of the whole case. Each of these motions was well taken and should have been granted. There is neither fact nor law upon which the verdict could stand. We are not disposed to say that the lower court is powerless to correct its own errors and that, having done so, its action is void. The granting of motions for judgment is proper, when the court can say, as a matter of law, that there is neither fact nor reasonable inference to support the verdict.'

The fact that there was a previous judgment rendered in accordance with the verdict was not noticed in the department decision as a fact affecting the court's power to thereafter set aside such judgment and render a judgment notwithstanding the verdict and contrary thereto.

Assuming for the present that a judgment was in fact rendered in accordance with the verdict before respondent made its motion for judgment notwithstanding the verdict, our decisions lead only to the conclusion that the trial court's power was thereafter limited to the granting of a new trial. Indeed, if it were not for the statute giving to the trial court the power of granting new trials after judgment, even such power would not exist. The judgment rendered upon the verdict, being the final determination of the rights of the parties, was the end of the case so far as the trial court was concerned, except only in so far as the statute provides otherwise. The view that the trial court should not be held powerless to correct its errors, as suggested by the language of the department decision, must be taken with the qualification that such power to correct errors ceases to exist upon the rendering of a final judgment, except, as we have noticed, by the exercise of the statutory power to grant a new trial.

In Wagner v. Northern Life Insurance Co., 70 Wash. 210, 215, 126 P. 434, 436 (44 L. R. A. [N. S.] 338), touching the power of the trial court in a case after judgment, we said:

'The respondent contends that the motion for judgment notwithstanding the verdict operated as a stay, and when granted vacated the first judgment, just as the granting of a motion for a new trial does. The answer is obvious. The motion for a new trial operates as a stay simply because the statute expressly gives it that effect, and the granting of a motion for a new trial vacates the judgment only because the statute expressly so declares. Rem. & Bal. Code, § 431. We have no statute providing for a motion for judgment non obstante veredicto, or giving either of these effects to such a motion. At common law it had no such effect, since it could not be interposed after entry of judgment. 23 Cyc. 781.'

In Auwarter v. Kroll, 79 Wash. 179, 184, 140 P. 326, 328, it was held that the court's power after judgment was 'limited to making an order granting a new trial.' In Forsyth v. Dow, 81 Wash. 137, 140, 142 P. 490, 491, it was said:

'Nor does the statute make the motion in any way dependent upon or concurrent with a motion for a new trial. The only right to move after the entry of a judgment is the statutory right to move for a new trial (Rem. & Bal. Code, § 431), or to vacate the judgment under title 3, chapter 17, Rem. & Bal. Code.'

It seems quite clear to us that the trial court was without power to render the judgment notwithstanding the verdict, which also set aside the former judgment.

It is contended, however, by counsel for respondent, that there was no valid judgment rendered upon the verdict before its motion for judgment notwithstanding the verdict was made. The record before us shows that on the 5th day of June, 1913, at the conclusion of the trial, there was entered in the minutes of the court by the clerk the following:

'In the Superior Court of the State of Washington, County of King.

' Peter Cim, Plaintiff, v. Northern Pacific Railway Co., Defendant. No. 92291.

'Thursday, June 5, 1913.

'Hon. Kenneth Mackintosh, Judge.

'Jury in the above cause brings in sealed verdict, which upon being opened is as follows:

"We, the jury in the above-entitled cause, do find for the plaintiff in the sum of three thousand dollars ($3,000.00).

"Cora R. Cotterill, Foreman.'

'Jury is polled, and ten jurors answer that it is their verdict and the verdict of the jury.

'Verdict is received and filed, and judgment is hereby entered in favor of the plaintiff and against the defendant in accordance with the verdict.

'Court discharges the jury from further consideration of the cause.'

This entry was recorded without change in the journal under the same date. It appears, however, from the certificate of the clerk attached to the transcript, that this record was not made in the journal until the 16th day of June, 1913. After this entry was made in the minutes of the court, and before it was recorded in the journal, respondent made its motion for judgment notwithstanding the verdict. Counsel for respondent call our attention to subdivision 4 of section 75, Rem. & Bal. Code, touching the duty of the clerk, which reads:

'He shall also provide and keep a well-bound book, to be called the order book or journal, in which he shall record the daily proceedings of the court, and enter all verdicts, orders, judgments, and decisions thereof. * * *

It is argued that under this provision there was no judgment until it was actually recorded in the journal, which, as we have noticed, occurred some days after the making of respondent's motion for judgment notwithstanding the verdict. We cannot accede to the view that the actual record of the judgment in the journal is necessary to its validity or existence. It is true that such record is the usual, and possibly the best, evidence of the existence of the judgment; but under our former decisions, and statutory provisions later than that above quoted, a judgment may be evidenced in other ways. In Quareles v. Seattle, 26 Wash. 226, 228, 66 P. 389, 390, where the existence of a judgment before its recording in the journal was challenged, which was evidenced only by a judgment signed by the judge and filed in the case, holding that this evidence a valid judgment, the court said:

'In this cause the judgment was filed on the same day it was rendered. When the judgment was signed by the court it was rendered, and when it was filed by the clerk became effective as a judgment. An execution might then have issued upon it. The fact that the clerk did not actually spread it upon the journal on that day, but waited seven days thereafter, did not delay the operation of the judgment for any purpose.'

In State ex rel. Brown v. Brown, 31 Wash. 397, 72 P. 86 (62 L. R. A. 974) some observations are made, which, viewed superficially, might seem not wholly in...