Staiger v. Gaarder

• Decision Date: 11 October 1977
• Docket Number: No. 9360,9360
• Citation: 258 N.W.2d 641
• Parties: Patricia STAIGER, Plaintiff/Appellee, v. James GAARDER and Ray M. Sigl, as Special Administrator of the Estate of James F. Sigl, Deceased, Defendants/Appellants. Civ.
• Court: North Dakota Supreme Court

Page 641

258 N.W.2d 641

Patricia STAIGER, Plaintiff/Appellee, v. James GAARDER and Ray M. Sigl, as Special Administrator of the Estate of James F. Sigl, Deceased Defendants/Appellants.

Civ. No. 9360.

Supreme Court of North Dakota.

Oct. 11, 1977.

Rehearing Denied Oct. 26, 1977.

Zuger & Bucklin, Bismarck, for the Estate of James F. Sigl, defendant and appellant; argued by William P. Zuger, Bismarck.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz and Wheeler, Wolf, Wefald & Peterson, Bismarck, for James Gaarder, defendant and appellant; argued by A. William Lucas, Bismarck.

Freed, Dynes, Malloy & Reichert, Dickinson, for Patricia Staiger, plaintiff and appellee argued by George T. Dynes, Dickinson.

PAULSON, Justice.

This is an appeal by the defendant, Ray M. Sigl, as Special Administrator of the Estate of James F. Sigl (hereinafter Sigl), and by the defendant, James Gaarder (hereinafter Gaarder), from the judgment of the Morton County District Court entered on February 7, 1977. Gaarder also appeals from the order of the Morton County District Court entered on March 17, 1977, denying Gaarder's motion for a judgment notwithstanding the verdict or in the alternative for a new trial. Sigl is represented by different counsel on appeal than represented him at trial.

On July 21, 1974, a collision occurred between a car driven by defendant Gaarder and another car driven by James F. Sigl. James F. Sigl was killed in the collision and his estate is named as one of the co-defendants in this lawsuit. The plaintiff, Patricia Staiger (hereinafter Staiger), was a passenger in the Gaarder car. Staiger brought this lawsuit against Gaarder and Sigl, alleging that she incurred severe bodily injuries as a result of the collision.

On January 27, 1977, the jury returned a verdict wherein it found, under North Dakota's Comparative Negligence Law (§ 9-10-07, N.D.C.C.), that Staiger was 10% negligent, Sigl was 30% negligent, and Gaarder was 60% negligent. The jury further found that Staiger should be awarded the total sum of $71,339.50 plus 4% interest thereon. On February 7, 1977, judgment was entered awarding to Staiger, against Sigl and Gaarder jointly and severally, the net amount of $64,205.55 (i. e., $71,339.50 less $7,133.95, reflecting the jury determination that Staiger was 10% negligent) plus 4% interest per annum on the judgment from July 21, 1974, to the date of the entry of the judgment.

Subsequent to the entry of judgment both Gaarder and Sigl made motions for judgment notwithstanding the verdict and in the alternative for a new trial. The motions were denied by the trial court on March 17, 1977. Gaarder and Sigl have brought timely appeals to this court asserting there were several prejudicial errors committed by the district court at the trial and further asserting that the jury verdict was excessive. They request this court to reverse the judgment and to grant a new trial.

At the outset we are confronted with Staiger's assertion that Sigl's appeal should be dismissed on the ground that the issues raised by Sigl on this appeal were also raised on Sigl's motion for judgment notwithstanding the verdict or in the alternative for a new trial and that Sigl failed to appeal from the order denying said motion. Staiger asserts that issues raised on a motion for judgment notwithstanding the verdict or a motion for a new trial cannot be raised on an appeal from the judgment itself but are reviewable only on an appeal from the order denying said motions. We disagree with that assertion.

Staiger's assertion is based upon decisions of this court involving certain appellate rules which are no longer applicable. Prior to March 1, 1973, an appeal in a civil action could be taken from a judgment by serving and filing a notice of appeal within six months after written notice of the entry of judgment and from an order within sixty days after written notice of entry of the order. Jager v. Grommesh, 77 N.W.2d 873, 874 (N.D.1956). Pursuant to Rule 4 of the North Dakota Rules of Appellate Procedure (effective March 1, 1973), an appeal from either a judgment or an order can be taken by filing notice with the clerk of the trial court within sixty days of the date of service of notice of entry of the judgment or order to be appealed. Also, pursuant to Rule 4, N.D.R.App.P., the running of the time for filing a notice of appeal is terminated by the timely filing of a motion for judgment notwithstanding the verdict or of a motion for a new trial, and the full time for appeal commences to run from the service of notice of the entry of an order denying said motions.

The decisions relied upon by Staiger were decided under the prior appellate rules wherein the time within which one could appeal from a court order expired prior to the time within which one could appeal from the judgment itself. Those decisions stand for the proposition that if a court order denying a motion for a new trial or a judgment notwithstanding the verdict has become final and the time within which an appeal could be taken from said order has expired, then the issues presented on the motion cannot be reviewed on a subsequent appeal from the judgment itself. Fladeland v. Nomeland, 95 N.W.2d 513 (N.D.1959); Jager v. Grommesh, 77 N.W.2d 873 (N.D.1956); Goodman v. Mevorah, 79 N.D. 653, 59 N.W.2d 192 (1953).

Under the current rules of appellate procedure, the time period within which one can appeal from a judgment expires at the same time as the time period within which one can appeal from an order denying a motion for judgment notwithstanding the verdict or for a new trial. Therefore, when Sigl brought this timely appeal from the judgment itself the time period had not expired within which Sigl could have appealed from the order denying his motion for judgment notwithstanding the verdict or for a new trial. Consequently, the issues raised on the motion for judgment notwithstanding the verdict or for a new trial did not become final, and said issues are reviewable on this appeal from the judgment itself. We hold, therefore, under the current rules of appellate procedure, that the issues properly presented on a motion for a judgment notwithstanding the verdict or for a new trial are reviewable when raised on a timely appeal from the judgment itself. Accordingly, the issues presented on Sigl's timely appeal from the judgment are properly before this court and cannot be dismissed on the grounds asserted by Staiger.

We will first consider Gaarder's appeal from the order denying his motion for judgment notwithstanding the verdict. On a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party in whose favor the verdict was rendered, and such motion should not be granted unless the evidence shows the moving party is entitled to judgment on the merits as a matter of law. Lovas v. St. Paul Ins. Companies, 240 N.W.2d 53 (N.D.1976). The motion must be denied unless the court finds that the evidence, viewed most favorably to the party against whom the motion is made, compels but one conclusion as to the verdict with which no reasonable man could differ. Nokota Feeds, Inc. v. State Bank of Lakota, 210 N.W.2d 182 (N.D.1973).

We have carefully examined the evidence in this case, and we conclude that the evidence presented questions of fact for the jury, the determination on which reasonable men could differ. Accordingly, Gaarder was not entitled to judgment as a matter of law. Thus, the district court did not commit error in denying Gaarder's motion for judgment notwithstanding the verdict.

Gaarder and Sigl have raised the issue that the district court committed prejudicial error when it allowed them only four peremptory jury challenges each.

The applicable statutory provision is § 28-14-05 of the North Dakota Century Code, which provides:

"Challenges Classification By whom Number allowed. Either party may challenge the jurors, but when there are several parties on either side, they must join in a challenge before it can be made unless the court, for due cause shown, shall permit otherwise. The challenges are to individual jurors and are either peremptory or for cause. Each party is entitled to six peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff; but a waiver as to the jurors then impaneled shall not constitute a waiver of the right to challenge jurors subsequently impaneled."

The ambiguity of this provision stems from the multiple uses of the term "party" within the provision, the various interpretations which can be placed upon the term "party", and the legislature's failure to define the term "party" under § 28-14-05, N.D.C.C.

The decisions of other jurisdictions which have construed statutes allowing a specific number of peremptory challenges to each "party" are enumerated in an excellent annotation at 32 A.L.R.3d 747 (1970). The majority position is that multiple litigants, designated as co-plaintiffs or co-defendants, whose interests are essentially the same, are deemed a "party" and together receive only one set of peremptory challenges. On the other hand, multiple litigants, designated as co-plaintiffs or co-defendants, whose interests are essentially adverse or antagonistic, are each deemed a "party" and are each entitled to receive a separate set of peremptory challenges. Ciurciu v. Modell's Shoppers World, 58 N.J. 155, 275 A.2d 737 (1971); O'Day v. Sakowitz Brothers, 462 S.W.2d 119 (Tex.Civ.App.1970); Nieves v. Kietlinski, 22 Ohio St.2d 139, 258 N.E.2d 454 (Sup.Ct.Ohio 1970); see, also, 32 A.L.R.3d 747 (1970). There are basically two minority positions. One minority view is that multiple litigants, designated as co-plaintiffs or co-defendants, are together entitled to only one set of peremptory challenges regardless of whether their interests are essentially common or are...