Stratton v. Rosenquist

• Citation: 163 N.W. 723,37 N.D. 116
• Parties: STRATTON v. ROSENQUIST.
• Decision Date: 09 June 1917
• Court: United States State Supreme Court of North Dakota

37 N.D. 116
163 N.W. 723

STRATTON
v.
ROSENQUIST.

Supreme Court of North Dakota.

June 9, 1917.

Syllabus by the Court.

The defendant made an alternative motion for judgment notwithstanding the verdict or for a new trial. The trial court made its order, denying the first request and granting a new trial. The defendant appealed from the whole order. Held, that the order is not appealable.

Appeal from District Court, Williams County; Fisk, Judge.

Action by Edgar C. Stratton against N. T. Rosenquist. Verdict for plaintiff, and from an order denying a new trial, defendant appeals. Appeal dismissed.

[163 N.W. 723]

Palmer, Craven & Burns, of Williston, for appellant. William G. Owens, of Williston, and George H. Moellring of Ray, for respondent.

CHRISTIANSON, J.

This is an action for damages alleged to have arisen out of a “land deal.” The jury returned a verdict in favor of the plaintiff for $771.85. The defendant then made an alternative motion for judgment notwithstanding the verdict or for a new trial. The trial court refused to order judgment notwithstanding the verdict, but granted a new trial. The defendant appeals from such order.

Respondent contends that the order is not appealable, and after a careful consideration of this question we have arrived at the conclusion that this contention must be sustained. This court has repeatedly held that an order denying a motion for judgment notwithstanding the verdict is nonappealable. See Turner v. Crumpton, 25 N. D. 134, 141 N. W. 209;Houston v. Minneapolis, etc., Railway Co., 25 N. D. 471, 141 N. W. 994, 46 L. R. A. (N. S.) 589, Ann. Cas. 1915C, 529;Starke v. Wannemacher, 32 N. D. 617, 156 N. W. 494.

The order appealed from, so far as adverse to the defendant, merely denied the motion for judgment notwithstanding the verdict. That portion of the order was nonappealable. St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N. W. 1077;Ripon Hardware Co. v. Haas, 141 Wis. 65, 69, 125 N. W. 659. See, also, Turner v. Crumpton, supra; Houston v. Minneapolis, etc., Ry. Co., supra; Starke v. Wannemacher, supra.

Appellant directs our attention to the decision of the Minnesota Supreme Court in Westacott v. Hanley et al., 109 Minn. 452, 124 N. W. 226, wherein an order similar to the one involved in the case at bar is held to be appealable. That decision was based upon the Minnesota statute which reads as follows:

“When, at the close of the testimony, any party to the action moves the court to direct a verdict in his favor, and such...