Smith v. Minneapolis St. Ry. Co.

• Decision Date: 20 April 1916
• Docket Number: No. 19904.,19904.
• Citation: 157 N.W. 499,134 Minn. 292
• Parties: SMITH v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

134 Minn. 292

157 N.W. 499

SMITH

v.MINNEAPOLIS ST. RY. CO.

No. 19904.

Supreme Court of Minnesota.

April 20, 1916.

Appeal from District Court, Hennepin County; Horace D. Dickinson, Judge.

Action by Nancy E. Smith against the Minneapolis Street Railway Company. From an order denying defendant's motion for new trial, it appeals. Motion to dismiss appeal denied.John F. Dahl, N. M. Thygeson, and W. Y. Smiley, all of Minneapolis, for appellant.

Mead & Bryngelson and L. S. Ogden, all of Minneapolis, for respondent.

PER CURIAM.

This is a motion by the plaintiff to dismiss the defendant's appeal from an order denying its motion for a new trial. The case was here before upon an appeal by the defendant from the judgment, and the judgment was affirmed. There was a motion for judgment notwithstanding the verdict, which was denied. There was no motion for a new trial. This appeal is reported in 155 N. W. 1046.

[2] A motion for judgment notwithstanding the verdict does not bar a subsequent motion for a new trial. Sallden v. City of Little Falls, 102 Minn. 358, 113 N. W. 884,13 L. R. A. (N. S.) 790, 120 Am. St. Rep. 635. The trial court may entertain a motion for a new trial after the decision upon an appeal from a judgment; there having been a motion for judgment notwithstanding the verdict, but no motion for a new trial. This is definitely decided in Daily v. St. Anthony Falls & Co., 129 Minn. 432, 152 N. W. 840. In that case there was a motion for judgment notwithstanding the verdict, which was denied, and an appeal from the judgment afterwards entered, which was affirmed. An application for a rehearing was made; and there was a request that the case be remanded without prejudice to the right of the defendant to move for a new trial. This court, in denying the motion for a rehearing, said:

‘The request that the order of this court be so amended as to remand the cause without prejudice to the right of defendant to move for a new trial is also denied. An application for leave to make such motion, if grounds exist therefor, must be addressed to the trial court, and the affirmance here ordered in no way interferes therewith.’

The trial court was not without jurisdiction to entertain a motion for a new trial. It entertained the motion and denied it. This court has jurisdiction of an appeal from the order denying it. The record does not advise us of the date of the motion or of its grounds. If the trial court, having jurisdiction, erroneously...