Richmire v. Andrews & Gage Elevator Co.

Citation92 N.W. 819,11 N.D. 453
CourtUnited States State Supreme Court of North Dakota
Decision Date16 December 1902
PartiesRICHMIRE v. ANDREWS & GAGE ELEVATOR CO.
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. On an appeal from a judgment in justice's court the notice may properly be served on the adverse party, instead of the attorney appearing on the trial in justice's court. The provisions of section 6625, Code Civ. Proc., are not applicable in such case.

2. Under chapter 63 Laws 1901, it is not error to direct the entry of judgment notwithstanding the verdict, when it is established by the evidence, as a matter of law, that a verdict should have been directed, and it further appears from the evidence that it is not probable that a different state of facts would be shown on another trial, and a different result reached, than that reached by directing judgment, notwithstanding the verdict.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by Willis Richmire against the Andrews & Gage Elevator Company. Judgment for defendant, and plaintiff appeals. Affirmed.

J. F. Callahan and Morrill & Engerud, for appellant. S. G. More and Robert M. Pollock, for respondent.

MORGAN, J.

This is an action for damages for the conversion of a certain number of bushels of flax. The plaintiff worked for the person who farmed the lands as a farm laborer, and on November 14, 1900, filed a lien for his services from August 28 to November 12, 1900, for the sum of $136. It is admitted that the lien, as filed, is regular, and complies with all the provisions of chapter 84, Revised Codes 1899, Civ. Code, under which such a lien may be filed. The answer to the complaint was a general denial and an affirmative defense of payment. The action was commenced in justice's court. Plaintiff recovered in that court. The defendant appealed to the district court, and in so doing served the notice of appeal on the plaintiff personally, and not on the attorney who had appeared for the plaintiff in justice's court. In district court the plaintiff moved to dismiss the appeal on the ground that the appeal papers should have been served on the attorney of record of the plaintiff, and not on the plaintiff personally. This motion was denied by the district court. The plaintiff excepted to that ruling, and the same is assigned as error in this court. Section 6771, Rev. Codes, provides that notice of appeal shall be served on the adverse party or his attorney. Section 6625, Rev. Codes, provides as follows: “The provisions of the Code of Civil Procedure shall govern the proceedings in justices' courts as far as applicable, when the mode of procedure is not prescribed by this Code, but the powers of justices' courts are only as herein prescribed.” Section 5732, Code Civ. Proc., provides that when a party shall have an attorney in the action the service of papers shall be made on the attorney, instead of the party. Under these provisions it is claimed that section 6625, supra, must govern, and that service upon the party of the appeal notice is not any service that will confer jurisdiction on the appellate court. We cannot concur in this conclusion. We think that section 6625, quoted, conclusively points to an opposite conclusion. It is only when the provisions of the justices' court act are silent on any matter that the provisions of section 6625 shall govern, if applicable. So far as the justices' court act lays down the procedure, that act governs, and is the law to be applied. If the justices' court act did not specify upon whom appeal papers should be served on an appeal to the district court, then section 6625 might govern. This, it seems to us, is the plain reading of that section. It says that the provisions of the Code of Civil Procedure shall apply “when the mode of procedure is not prescribed by this Code,” referring, of course, to the Justices' Code. Weimmer v. Sutherland, 74 Cal. 341, 15 Pac. 849.

The next assignment, and the only other assignment or question raised in the case, specifies error by the district court in granting defendant's motion for judgment notwithstanding the verdict of the jury. At the close of the plaintiff's direct testimony, and at the conclusion of taking the testimony in the case, the defendant moved for a directed verdict, and both motions were overruled. The case was then submitted to the jury, with instructions to find a general verdict and to answer special interrogatories. They found a general verdict for the plaintiff and answers to the special interrogatories. The defendant, immediately on the receiving of the verdict, moved upon the minutes of the court for judgment in its favor notwithstanding the verdict of the jury, on the same grounds contained in the motion for a directed verdict. The motion was granted, an exception saved, judgment of dismissal of the action ordered, and such judgment was duly entered. The appeal to this court is from such judgment. The motion for judgment notwithstanding the verdict was made on the same grounds as the motion for a directed verdict, and is, in substance, as follows: That plaintiff has failed to make out a cause of action, and for the further reason that the flax was delivered at defendant's elevator by the plaintiff as the agent of the owners without disclosing that he had any lien thereon, and therefore waived any lien thereon; and that defendant shipped the flax out of the state in consequence of such delivery by the plaintiff. The motion for judgment was made under chapter 63, Laws 1901. So far as material, that law is as follows: “In all cases where, at the close of the testimony in the case tried, a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion was denied, the trial court on motion made that judgment be entered notwithstanding the verdict, or on motion for a new trial, shall order judgment to be entered in favor of the party who was entitled to have a verdict directed in his or its favor, * * * whenever it shall appear from the testimony that the party was entitled to have such motion granted.” This statute has introduced a practice in the trial of causes not hitherto found in any statute of the state. It is allied to the practice under the common law of ordering judgments non obstante veredicto. Under the common law such judgments could originally have been granted in plaintiff's favor only, and only in cases where the plea confessed the cause of action, and set up matters in avoidance that were insufficient, and not a defense or bar. Later the rule was extended so that such judgments could be applied for and entered in favor of defendants when the plaintiff's pleadings were insufficient to sustain a judgment in his favor. Such a judgment could not be entered in any cases where the pleadings stated a good cause of action or a valid defense. Such a judgment would not be entered in cases of defective pleadings, but only in cases where the cause of action or defense was without merit in whatever form pleaded. Before such a judgment would be entered, the defense or cause of action must be defective in matter of substance, and beyond the power of amendment. 2 Enc. Pl. & Prac. p. 912, and cases cited. This statute is taken from Minnesota, and is...

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