Snyder v. The Utah Construction Company

• Decision Date: 23 October 1934
• Docket Number: 6173
• Citation: 38 P.2d 1004,55 Idaho 31
• Parties: GEORGE SNYDER and ANNA SNYDER, Appellants, v. THE UTAH CONSTRUCTION COMPANY, Respondent
• Court: Idaho Supreme Court

38 P.2d 1004

55 Idaho 31

GEORGE SNYDER and ANNA SNYDER, Appellants, v. THE UTAH CONSTRUCTION COMPANY, Respondent

No. 6173

Supreme Court of Idaho

October 23, 1934

APPEAL AND ERROR-NONAPPEALABLE ORDERS - APPEAL FROM ORDER GRANTING MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT-DISMISSAL.

Appeal does not lie from an order granting motion for judgment notwithstanding the verdict, such order not being "final judgment" but merely order for judgment to be entered later (I. C. A., secs. 7-224, 11-101, 11-201).

APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Jay L. Downing, Judge.

Action for damages for personal injuries and to automobile. Motion to dismiss appeal. Motion granted.

Motion of respondent to dismiss the appeal granted, costs allowed to respondent.

Kent M Crosby, George H. Crosby, Jr., and Charles E. Harris, for Appellants.

In the case of Swinehart v. Turner, 36 Idaho 450, 452, 211 P. 558, the court well said:

"A judgment is the final determination of the rights of the parties in an action or proceeding. (C. S., sec. 6826.)"

"In dismissing the action with costs to defendants, this instrument does finally determine the rights of the parties in the particular action, and is therefore a judgment in substance. Respondents contend that it is not a judgment because it does not state that plaintiffs shall recover costs from defendants, and does not contain a blank in which the amount of the costs may be inserted. C. S., sec. 7220 provides that the clerk shall insert the amount of the costs when taxed and ascertained, making it a clerical duty."

And also in the case of Marshall v. Enns, 39 Idaho 744 746, 230 P. 46:

"But a formal order dismissing an action is in effect a final judgment as contemplated by the statute, and will be so considered notwithstanding its designation."

"It matters not in what form the determination of the suit is put, so that it embodies the final action of the Court, it is sufficient."

Edwin Snow and Maurice H. Greene, for Respondent.

The question of whether an appeal will lie from an order based on a motion non obstante is not new in this state, as it was specifically held in Cady v. Keller, 28 Idaho 368, 154 P. 629, that:

"From the order denying appellant's motion for judgment notwithstanding the verdict of the jury and from the judgment made and entered in this case, this appeal is prosecuted."

Section 4800, Rev. Codes, provides: "A judgment or order, in a civil action, except when expressly made final, may be reviewed as prescribed in this Code, and not otherwise."

"Section 4807, Rev. Codes, fixes the time within which appeals may be taken from judgments and certain orders made and entered in district courts to this court, but no provision is made for an appeal from an order denying a motion for judgment notwithstanding the verdict, and, in the absence of such a provision, it is not an appealable order."

The rule adopted in the foregoing decision of this court is uniformly adhered to by courts of other states where the statutes do not expressly provide for an appeal from such an order. (Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209; Houston v. Minneapolis, St. P. & S. S. M. R. Co., 25 N.D. 469, 141 N.W. 994, 46 L. R. A., N. S., 589; Ripon Hardware Co. v. Haas, 141 Wis. 65, 123 N.W. 659.)

WERNETTE, J. Budge, C. J., Givens, Holden, JJ., and MORGAN, J., concurring.

OPINION

WERNETTE, J.

Appellants instituted this action to recover damages for personal injuries and damages to appellants' automobile. The cause was tried to a jury and at the close of the evidence respondent moved for a directed verdict, which was denied. Later a verdict was rendered in favor of appellants, upon which judgment was entered accordingly. Thereafter, the respondent, Utah Construction Company, filed a motion for judgment non obstante veredicto. On December 19, 1933, the following order, made by the court, was entered, to wit:

"The defendant, The Utah Construction Company, having at the close of the testimony at the trial hereof moved the court to direct a verdict in its favor, which motion was denied; and thereafter a verdict having been returned by the jury in favor of the plaintiffs and against the said defendant, and the said defendant having subsequently, within ten days after the rendition of the verdict, filed its motion that judgment be entered in its favor, notwithstanding the verdict, which motion, by agreement of the parties, was submitted on written briefs and by the court duly considered; and the court being fully advised in the premises,

"IT IS HEREBY ORDERED that said motion of defendant be, and it is hereby, granted; and the judgment heretofore entered herein upon the verdict in favor of plaintiffs and against said defendant is hereby vacated and set aside."

thereby granting the motion for judgment non obstante veredicto, and vacating the judgment in favor of the appellants. On the same date, judgment was entered in favor of respondent, Utah Construction Company, as follows:

"The Court having granted the motion of defendant, The Utah Construction Company, for judgment in its favor notwithstanding the verdict of the jury; and the judgment in favor of plaintiff and against said defendant rendered and entered upon said verdict having been by the court vacated and set aside,

"It is hereby ordered, adjudged, and decreed that the above named plaintiffs, Anna Snyder and George Snyder, have and recover nothing against the said defendant, Utah Construction Company; and that the said defendant have and recover against the said plaintiffs, Anna Snyder and George Snyder, said defendant's costs herein, taxed at $ , for which execution may issue, but only against the community property of said plaintiffs."

On March 12, 1934, the appellants appealed from the order granting the motion non obstante veredicto, the notice of appeal reading:

"To the Utah Construction Company and Edwin Snow, Its Attorney:

"You will please take notice that the plaintiffs, and both of them, in the above entitled case hereby appeal from the order Granting Motion for Judgment Notwithstanding Verdict made and entered herein on the 15th day of December, 1933, to the Supreme Court of the Idaho, as said order was made in favor of the defendant, The Utah Construction Company, a corporation and against these plaintiffs. "

Respondent has moved to dismiss the appeal, basing its motion on three grounds, 1. That the order appealed from is a nonappealable order. 2. That the appeal was not taken within the time provided by law. 3. That the transcript on appeal contains no certificate of the trial court as to the papers, records, or files used by the court on the hearing of the motion for judgment notwithstanding the verdict, as required by Rule 23 of the rules of this court.

It is to be observed that the notice of appeal is "from the Order Granting Motion for Judgment Notwithstanding the Verdict." The notice does not, in any manner, set forth that it is an appeal from the judgment entered December 19, 1933, in favor of respondent, above set forth.

Section 11-101, I. C. A., provides as follows:

"A judgment or order, in a civil action, except when expressly made final, may be reviewed as prescribed in this code, and not otherwise."

Section 11-201, I. C. A., sets forth the judgments and orders which are appealable and the time within which such appeals must be taken, as follows:

"An appeal may be taken to the Supreme Court from a district court:

"1. From a final judgment in an action or special proceeding commenced in the court in which the same is rendered; from...