Prairie Flour Mill Co. v. Farmers' Elevator Co.

• Decision Date: 25 November 1927
• Docket Number: 4827
• Citation: 45 Idaho 229,261 P. 673
• Parties: PRAIRIE FLOUR MILL COMPANY, a Corporation, Respondent, v. FARMERS ELEVATOR COMPANY, a Corporation, FERDINAND ROCHDALE COMPANY, a Corporation, G. W. TARBET, THE AMERICAN SURETY COMPANY, and MARYLAND CASUALTY COMPANY, Appellants
• Court: Idaho Supreme Court

261 P. 673

45 Idaho 229

PRAIRIE FLOUR MILL COMPANY, a Corporation, Respondent, v. FARMERS ELEVATOR COMPANY, a Corporation, FERDINAND ROCHDALE COMPANY, a Corporation, G. W. TARBET, THE AMERICAN SURETY COMPANY, and MARYLAND CASUALTY COMPANY, Appellants

No. 4827

Supreme Court of Idaho

November 25, 1927

JUDGMENT NON OBSTANTE VEREDICTO NOT PERMITTED UNDER CODE PROVISIONS-COMMON LAW-APPEAL AND ERROR-PLEADING-TRIAL-MOTION FOR DIRECTED VERDICT.

1. C S., secs. 6830, 6831, 6860, 6861, 6864, 6866-6868, 7302 9019, 9254, being repugnant to, and inconsistent with common-law practice of moving for judgment non obstante veredicto, such practice is not proper or permissible nor continued in effect by section 9460, and, when a trial has been had and verdict rendered, court, under sections 6888, 6893, can relieve one from verdict only by setting it aside on motion or on its own motion and granting a new trial.

2. At common law, judgment non obstante was only granted on record of pleadings, and did not rest on sufficiency or insufficiency of evidence on either side, was only granted on behalf of plaintiff, and in case where defendant admitted material allegations of complaint, but pleaded new matter by way of defense or confession and avoidance.

3. At common law, after trial and verdict in defendant's favor on new matter pleaded by way of defense or confession and avoidance, court could entertain motion for judgment non obstante, which was based on question of law and not on the evidence.

4. At common law, one whose demurrer was overruled had to stand on it or withdraw it before he could answer, both demurrer and answer not being permissible.

5. At common law, new matter in an answer required further answer a reply by plaintiff, and a plaintiff who had demurred to new matter in answer was required, in order to reply, to withdraw or waive his demurrer.

6. At common law, practice permitting plaintiff to move for judgment non obstante as against defendant's plea of new matter, and permitting defendant to move in arrest of judgment, permitted court to again inquire into sufficiency of allegations of new matter in defendant's answer.

7. Under practice and code provisions of Idaho, one may demur and answer at same time, or he may demur, and, if his demurrer be overruled, try out cases, and still save and raise on appeal any error in overruling demurrer.

8. Plaintiff may demur to new matter in answer, and, if demurrer is overruled and verdict rendered for defendant based on such new matter, may test sufficiency of allegations of new matter by assigning error on appeal in overruling his demurrer.

9. Since a motion for nonsuit cannot be based on insufficiency of complaint, by same token a motion for directed verdict should not be permitted to be based on insufficiency of allegations of new matter in answer.

10. On appeal from judgment non obstante erroneously entered, it is neither necessary nor proper to consider other assignments of error.

11. Error in entering judgment non obstante cannot be held to be error without prejudice, in view of material conflict in evidence, sufficient to entitle parties to jury trial.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.

Action in conversion. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellants.

Wilbur L. Campbell and Williams & Cornelius, for Appellant Maryland Casualty Co., cite no authorities on points decided.

B. Auger, for Appellant American Surety Co., cites no authorities on points decided.

Fred E. Butler and Edw. C. Butler, for Respondent.

If upon the entire evidence there is no question of fact for the jury and one party is entitled to a verdict as a matter of law, the proper procedure is to direct the verdict in his favor. If, however, instead of directing a verdict the court discharges the jury and enters a judgment which would have properly followed upon the directed verdict, the procedure, while irregular, is not ground for reversal. (Bowman v. Bohney, 36 Idaho 162, 210 P. 135; Adamson v. Mattson, 32 Idaho 493, 185 P. 553; 38 Cyc. 1594; Western Montana Nat. Bank v. Home Ins. Co. of New York, 75 Mont. 16, 241 P. 611; LeClair v. School Dist. No. 28, 74 Mont. 385, 240 P. 391; Ford v. Schall, 114 Ore. 688, 236 P. 745; Bow v. R. & N. Oil Gas Co., 43 Idaho 80, 251 P. 295.)

TAYLOR, J. Wm. E. Lee, C. J., and Givens, J., concur. BUDGE, J., T. Bailey Lee, J., Dissenting.

OPINION

TAYLOR, J.

The plaintiff, respondent, brought this action in conversion as assignee of a warehouse receipt issued by the defendant Ferdinand Rochdale Company to one Phoebe Snyder, and by her sold and assigned to Riggs-Mikkelson Grain Company, and alleged to have been by the latter, with all its right, title, claim and interest in said wheat, assigned to plaintiff.

The complaint alleges that Farmers Elevator Company, a corporation, was created "for the purpose of reorganizing and taking over the assets of the Ferdinand Rochdale Company, and assuming its liabilities," and that it "did take over the assets and assume the liabilities of the Ferdinand Rochdale Company"; that the two warehouse companies and defendant Tarbet, as manager thereof, had converted the grain and refused to deliver it, and asked judgment for the grain or its highest market value. The surety companies were made defendants upon bonds issued by them for the respective parties. They each specifically denied all the allegations of the complaint. The defendants Farmers Elevator Company and G. W. Tarbet admitted, by not denying the allegation, that this company did take over the assets and assume the liabilities of the Ferdinand Rochdale Company, but denied other material allegations of the complaint, including the assignment by Riggs-Mikkelson Grain Company to the plaintiff.

Each and all of the defendants, as an affirmative defense, alleged that the Riggs-Mikkelson Grain Company was, at all times mentioned, and now is, a foreign corporation engaged in transacting and carrying on business in Idaho, contrary to, and without having complied with, the constitution and laws thereof; that the contract sued upon was made and to be performed in Idaho; that if any assignment was made by Riggs-Mikkelson Grain Company, it was made without payment of any valuable consideration, and for the purpose of avoiding the laws of the state relating to the maintenance of actions by foreign corporations.

The defendants Farmers Elevator Company and G. W. Tarbet alleged a further separate and affirmative defense, that the grain in controversy had been, by the Ferdinand Rochdale Company, in the manner therein alleged, sold to and shipped to and received by the Riggs-Mikkelson Grain Company.

The jury rendered a verdict for the defendants. Plaintiff's counsel immediately, without stating any grounds therefor, moved for a judgment notwithstanding the verdict; and the court, without stating any grounds except those recited in the judgment, immediately granted the motion, and made and entered a judgment in favor of the plaintiff, which, after setting forth the verdict, recited, as its only ground for judgment non obstante, as follows:

"Thereupon, Fred E. Butler, attorney for plaintiff, immediately moved for judgment non obstante veredicto, in accordance with the prayer of plaintiff's complaint, and the proof adduced during the trial of said action; and, it appearing to the court that said verdict so rendered was contrary to the instructions given said jury, and the court being fully advised in the premises, granted said motion."

The appeal is from this judgment. Appellants assign as error that the court erred in entering judgment non obstante veredicto, and contend that a motion for, or entry of, judgment non obstante, is not recognized or permissible under our code practice, and in no event under the circumstances of this case.

In Bow v. R. & N. Oil Gas Co., 43 Idaho 80, 251 P. 295, a motion for judgment for plaintiff notwithstanding the verdict for defendants, was made and denied. Plaintiff appealed. The original opinion directed a judgment for plaintiff against five of the defendants, and a new trial as to the remaining defendants. Upon rehearing, the opinion was modified to strike the order for judgment therefrom, and a new trial was granted as to all of the defendants. The propriety of the practice of entering a judgment notwithstanding the verdict was not in issue, raised or discussed.

In Zilka v. Graham, 26 Idaho 163, 141 P. 639, a motion was made by one of two defendants for judgment non obstante, and its denial claimed as error on appeal. This court simply ruled that, coming after the entry of judgment, the motion was too late. No point was made or decided as to the propriety of the practice.

In Cady v. Keller, 28 Idaho 368, 154 P. 629, motion for judgment non obstante was denied. This court simply decided that an order denying such motion was not an appealable order, under C. S., sec. 7149.

It will thus be seen that no case has heretofore been presented to this court in which a judgment non obstante has been rendered, nor in which the propriety of the practice of entering such a judgment, or its justification under our practice, has been argued or decided as a point in issue.

In jurisdictions having code provisions so similar to our own as to appear to give no reason for distinction, the common-law practice of entry of judgments non obstante veredicto, has been denied. (Kirk v. Salt Lake City, 32 Utah 143, 89 P. 458, 12 L. R. A., N. S., 1021; Southern Pacific L. Co. v. Dickerson, 188 Cal. 113 204 P. 576; Best v. Beaudry, 62 Mont. 485, 205 P. 239.) Since the decision in Southern Pacific L. Co. v. Dickerson, the ...