Sobel v. Diatz

• Decision Date: 12 April 1951
• Docket Number: No. 10681.,10681.
• Parties: SOBEL v. DIATZ et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 329, 189 F.2d 26 (1951)

SOBEL v. DIATZ et al.

No. 10681.

United States Court of Appeals, District of Columbia Circuit.

Argued March 5, 1951.

Decided April 12, 1951.

Stanley H. Kamerow, Washington, D. C., with whom Allan L. Kamerow, Washington, D. C., was on the brief, for appellant.

Howard Vogel, Washington, D. C., for appellees.

Before CLARK, PROCTOR, and FAHY, Circuit Judges.

CLARK, Circuit judge.

This action was brought against the appellant and the Washington Technical School, Inc., to recover twenty-six hundred and fifty dollars for the unexpired term under a lease which had been assigned to the appellant. Counsel for the appellant moved for a directed verdict both after the presentation of the appellees' case and at the termination of the entire case. The trial court denied both and submitted the case to the jury which rendered a verdict of twenty-six hundred and fifty dollars in favor of the appellees and against the appellant but not against the Washington Technical School, Inc.

The appellant moved in the Municipal Court for a new trial or in the alternative for judgment non obstante veredicto. The Court overruled the motion for a new trial but granted appellant's motion for judgment non obstante veredicto. On appeal to the Municipal Court of Appeals the judgment of the Municipal Court was reversed and the verdict of the jury in favor of the appellees was ordered reinstated.

The appellant first contends that the appeal taken by the appellees to the Municipal Court of Appeals from the Municipal Court was taken from a non-appealable order and consequently the Municipal Court of Appeals had no jurisdiction to review the case or to order a reversal of the same. Judge Hood correctly stated the law applicable to this point, and since we do not feel we can add materially to it we adopt his conclusion. "Appellee appellant here has moved to dismiss the appeal from the Municipal Court to the Municipal Court of Appeals because the notice of appeal states that the appeal is from the order of the 23rd day of November, which order was one denying a motion for rehearing of the motion for judgment. Generally an order denying a motion for rehearing, a motion for a new trial or other like order as the appellant contends is not an appealable order. The notice of appeal should have specified the order granting judgment as the order appealed from instead of the order denying the rehearing. However it is obvious that the appeal was intended to be from the order granting judgment and appellee appellant here concedes that, because the motion for rehearing extended the time for appealing, the notice was timely filed even as to that order. Under these circumstances we may treat the notice as an appeal from the judgment. Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L.R. 782. Cf. Indemnity Ins. Co. v. Reisley, 2 Cir., 153 F.2d 296, cert. denied 328 U.S. 857 66 S.Ct. 1349, 90 L.Ed. 1629. * * *" 73 A.2d 228.

The appellees next contend that the judgment n. o. v. was not properly granted, and with this position we agree. In McSweeny v. Wilson, 1946, 48 A.2d 469, 470 the Municipal Court of Appeals for the District of Columbia held: "* * * the motion for judgment notwithstanding the verdict `cannot be granted unless, as matter of law, the opponent of the movant failed to make a case and, therefore, a verdict in movant's favor should have been directed.' Thus the test to be applied to a motion for judgment n. o. v. is the same as that to a motion for directed verdict."

To the same effect is Nickel v. Scott, Mun.App.D.C. 1948, 59 A.2d 206 which cites Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147, and McSweeny v. Wilson, supra.

It is apparent that we must determine here whether, viewing the facts in the light most favorable to the appellee, the appellee failed, as a matter of law, to make out a case for himself and whether, therefore, a verdict in the movant's favor should have been directed. Obviously, the trial judge who granted the judgment n. o. v. did not think that the appellant had failed to make out his case, because he denied motions for a directed verdict both after the appellee had presented his case and at the end of the trial.

When we look at the evidence and testimony of this case, we quite agree with the trial judge that a directed verdict should not have been granted, and consequently we feel the judgment n. o. v. should not have been granted. The only element of the appellees' case which the appellant alleges was not proved is that the appellees did not consent to the assignment of the lease, and therefore there existed no privity of contract. Mrs. Diatz who is one of the appellees, and her rental agent, and Junsch, the original lessee, testified that the appellant assumed the lease. Mrs. Diatz, also testified that she gave her consent to the assignment, and the jury before whom the question of both appellees' consent was raised gave the verdict in favor of the appellees. The Municipal Court of Appeals drew the conclusion that it could reasonably be inferred from the testimony of Mrs. Diatz that "she was not only...