Schulte v. Chicago, M. & St. P.R. Co.

• Decision Date: 10 May 1904
• Citation: 99 N.W. 714,124 Iowa 191
• Parties: JOSEPH SCHULTE v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

99 N.W. 714

124 Iowa 191

JOSEPH SCHULTE v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 10, 1904

Appeal from Shelby District Court.--HON. N.W. MACY, Judge.

ACTION to recover damages for injuries received at a railway crossing by reason of the negligence of the employes of the railway company in failing to give signals. There was a verdict for the plaintiff, accompanied by special findings on interrogatories submitted. Thereafter defendant moved for judgment in his favor on the special findings, and at the same time filed a motion for a new trial. The motion for judgment on the special findings was sustained. There was no ruling on the motion for a new trial. On an appeal to this court the judgment based on the special findings was reversed (see 114 Iowa 89), and the case was remanded. Thereupon plaintiff moved for judgment in his favor on the general verdict, and defendant insisted on a ruling on its motion for new trial. The court refused to rule on the motion for new trial, and rendered judgment in plaintiff's favor on the general verdict from which judgment defendant appeals.

Affirmed.

Byers & Lockwood and J. C. Cook, for appellant.

Cullison & Robinson, for appellee.

OPINION

MCCLAIN, J.

I.

The first question presented is whether, after the sustaining of the motion of defendant for judgment on the special findings and the reversal in this court of the judgment entered on such motion, defendant was entitled to have a ruling on his motion for new trial which had been filed in due time, but had not been ruled on. It is settled by the prior holdings of this court (unless the rule has been changed by a new provision in the Code of 1897, to be hereinafter considered) that by taking the ruling on motion for judgment on special verdict or special findings the party against whom the general verdict has been entered waives his right to the ruling on the motion for new trial. In Pieart v. Chicago R. I. & P. R. Co., 82 Iowa 148, 47 N.W. 1017, the rule is thus stated: "We are of the opinion that within the time allowed a party may file his motion for judgment, and also his motion for new trial, to be ruled upon in case the former is overruled. In such case, if the motion for judgment is sustained, that is a waiver of the motion for a new trial but, if the motion for judgment is overruled, the motion for new trial may be insisted upon, and, if sustained, that is a waiver of any errors in overruling the motion for judgment; but, if both motions are overruled, the moving party has a right to be heard as to both, on appeal." In this holding the court applies the rule previously announced in Nixon v. Downey, 49 Iowa 166, and Stone v. Hawkeye Ins. Co., 68 Iowa 737, 28 N.W. 47.

It is contended, however, for appellant, that by the provision of Code, section 3759, a section first found in the Code of 1897, which went into effect after the decision of the Pieart Case, the rule of practice in this respect has been changed. It is provided in that section that: "The filing of either a motion for a new trial, for judgment notwithstanding the verdict, or in arrest of judgment, shall not be a waiver of the right to file either or both of the others, but any such motion shall be filed within the time fixed for the filing of motions for new trials." But we are of the opinion that the motion for judgment notwithstanding the verdict referred to in this section is the motion described in Code, section 3757, which provides that: "Either party may file a motion for judgment in his favor, notwithstanding the fact that a verdict has been returned against him, if the pleadings of the party in whose favor the verdict has been returned omit to aver some material fact or facts necessary to constitute a complete cause of action or defense, the motion clearly pointing out the omission." Where the special findings are inconsistent with the general verdict, "the court may give judgment accordingly, or set aside the verdict and findings, as justice may require." Code, section 3728. But a motion asking the court to render judgment on special findings inconsistent with the general verdict--that is, on the findings treated as a special verdict--would not be a motion for judgment notwithstanding the verdict. If the findings, though inconsistent with the general verdict, are not sufficient to constitute a special verdict...