Scott v. J. C. Penney Co.
| Decision Date | 12 July 1960 |
| Docket Number | No. 6533,6533 |
| Citation | 67 N.M. 219,354 P.2d 147,1960 NMSC 68 |
| Parties | Lydia M. SCOTT, Plaintiff, Defendant-in-Error. v. J. C. PENNEY COMPANY and Drews Riska, Defendants, Plaintiffs-in-Error. |
| Court | New Mexico Supreme Court |
Seth, Montgomery, Federici & Andrews, Santa Fe, Rowley, Breen & Bowen, Tucumcari, for plaintiffs in error.
Emmett C. Hart, Tucumcari, Smith, Kiker & Kitts, Albuquerque, for defendant in error.
This case was brought here on writ of error. For the sake of clarity, the parties will be referred to herein as plaintiff and defendants, as they appeared below.
Plaintiff obtained a verdict in the lower court. Within the time provided by the rules of civil procedure, defendants filed a motion for judgment notwithstanding the verdict, and in the alternative also filed a motion for a new trial. The lower court set aside the verdict, denied the motion of defendants for judgment n. o. v., but granted the defendants' alternative motion for a new trial.
Defendants are here complaining of the court's action in denying their motion for judgment n. o. v. Plaintiff is in this court on cross-appeal, complaining of the court's action in setting aside the verdict and granting a new trial.
Plaintiff in her brief has questioned whether the order of the lower court is appealable, since defendant was granted the relief sought alternatively, to-wit: a new trial.
Our rule 50 is identical with rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under the federal rules, it seems quite clear that an order granting a new trial is not appealable. See 2 Barron & Holtzoff, Secs. 1080 and 1081; 5 Moore's Fed. Prac., Sec. 50.12-50.15; Hunt v. United States, 10 Cir., 1931, 53 F.2d 333; Florini v. Stegner, 3 Cir., 1936, 82 F.2d 708; Frank Mercantile Corp. v. Prudential Ins. Co. of America, 3 Cir., 1940, 115 F.2d 496; Libby, McNeill & Libby v. Malmskold, 9 Cir., 1940, 115 F.2d 786; Youdan v. Majestic Hotel Management Corp., 7 Cir., 1942, 125 F.2d 15; Dostal v. Baltimore & O. R. Co., 3 Cir., 1948, 170 F.2d 116; Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, together with annotation thereto.
As in federal courts, appeals may be taken in New Mexico only from final judgments, with a limited exception as to certain interlocutory decisions. See 3 A Barron & Holtzoff, Chap. 13; N.M.Sup.Ct.Rule 5. See also 3 Barron & Holtzoff Sec. 1302.1.
Analyzing the situation, it would appear clear that if a motion for judgment n. o. v. is sustained, there follows a judgment that can be appealed and the correctness of the court's ruling on the motion can be reviewed. Marr v. Nagel, 58 N.M. 479, 272 P.2d 681. If the motion is overruled, then the judgment is entered and can be appealed. However, if it is coupled with a motion for a new trial, denial of the motion leaves the judgment standing, and once again it can be appealed, and a review had of the correctness of the court's ruling. On the other hand, if the motion for a new trial is granted, it merely means the case stands as never tried, and until retried and a judgment entered, there is no final judgment. As said by Circuit Judge Phillips, in Hunt v. United States, supra, 'The cause now stands in the District Court with the issues undisposed of, as if it had never been tried.'
This was recognized by the drafters of our rule 5(1), which provides for a time for the starting to run of the 30 days in which an appeal must be taken to be 30 days from the entry of an order '(a) * * * granting or denying a motion for judgment under Rule 50(b) or * * * (c) * * * denying a motion for a new trial under Rule 59.'
It should be noted that results outlined above are specifically provided for, and no provision is made for appeal if motion for a new trial is granted. Mention should also be made of the fact that no specific provision is made when the motions are in the alternative as provided in rule 50(b), but since the verdict ends up as a nullity when motion for a new trial is granted, it must take precedence over the order either sustaining or overruling a motion for judgment n. o. v. See the federal cases cited above.
Some support for the conclusion stated above is found in the case of Milosevich v. Board of County Commissioners, 46 N.M. 234, 126 P.2d 298. In that case, a motion to dismiss writ of error sued out to review a trial court's granting a new trial was sustained. While recognizing that an appeal will lie in certain cases from orders granting new trials--specifically if it is based upon errors of law and 'practically disposes of the merits of the action' as was the case in In re Richter's Will, 42 N.M. 593, 82 P.2d 916, 921, the court determined that in the case there being decided, there could be no appeal. The court said [46 N.M. 234, ...
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1996 -NMSC- 67, Rhein v. ADT Automotive, Inc.
...it merely means the case stands as never tried, and until retried and a judgment entered, there is no final judgment." 67 N.M. 219, 220, 354 P.2d 147, 149 (1960). Since only final judgments are appealable, "an order granting a new trial following a jury verdict but before entry of judgment ......
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State v. Danek
...not present in this case as they were in Davis. As a final note, we believe our decision also finds support from Scott v. J.C. Penney Co., 67 N.M. 219, 354 P.2d 147 (1960). In Scott, our Supreme Court held that a civil defendant could not appeal from the denial of a JNOV where the trial cou......
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Cockrell v. Gilmore
...1942, 46 N.M. 234, 126 P.2d 298; Nally v. Texas-Arizona Motor Freight, Inc., 1960, 67 N.M. 153, 353 P.2d 678; and Scott v. J. C. Penney Company, 1960, 67 N.M. 219, 354 P.2d 147. Appellants urge that this is not a question involving our jurisdiction and that therefore Supreme Court Rule 16(4......
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Starnes v. Starnes
...judgments previously entered so as to permit new pleadings or trials. These cases are reviewed and discussed in Scott v. J. C. Penney Co., 67 N.M. 219, 354 P.2d 147. No convincing reason for departing from our holdings in those cases has been advanced, and accordingly we adhere to them, and......