Turner v. Crumpton

• Decision Date: 10 April 1913
• Parties: TURNER v. CRUMPTON et al.
• Court: North Dakota Supreme Court

25 N.D. 134

141 N.W. 209

TURNER

v.CRUMPTON et al.

Supreme Court of North Dakota.

April 10, 1913.

Syllabus by the Court.

An order denying a motion for judgment notwithstanding the verdict is not an appealable order. To be reviewed on appeal such an order must be included in or connected with a denial of a motion for a new trial.

Appeal from District Court, Nelson County; Templeton, Judge.

Action by C. W. Turner against F. R. Crumpton and another, etc. From an order denying judgment non obstante veredicto, defendants appeal. Appeal dismissed.Frick & Kelly, of Lakota, for appellants. C. J. Samson, of Lakota, and O. B. Burtness, of Grand Forks, for respondent.

GOSS, J.

This case has been before this court once before on appeal. See the case of the same title in 21 N. D. 294, 130 N. W. 937. We have examined the original judgment roll and ascertained that this appeal is taken from an order denying the motion for judgment notwithstanding the verdict, without there being coupled therewith, to confer appellate jurisdiction upon this court, an alternative motion for new trial. This court is therefore without jurisdiction. The appeal is presumably taken under section 7225, R. C. 1905, but does not come within any of the provisions of that statute. An order of denial of a motion for judgment non obstante veredicto is not appealable. See cases cited in Dec. Dig. tit. Appeal and Error, § 109; also Ripon Hdw. Co. v. Dodge, 141 Wis. 65, 123 N. W. 659;Hodge v. Insurance Co., 111 Minn. 321, 126 N. W. 1098;Watkins Medical Co. v. McCall, 116 Minn. 389, 133 N. W. 966;Nelson County v. Turnpike Co. (Ky.) 78 S. W. 856. Subdivision 1 of section 7225, R. C. 1905, has been held to be identical with the corresponding provision of the Wisconsin statute, in Persons v. Simons, 1 N. D. 243, 46 N. W. 969, which case virtually passes upon this question. See, also, many cases cited in Hostager v. Northwest Paper Co., 109 Minn. 509, 124 N. W. 213. Considering this order is made on the court's own motion, we may quote the following from Hostager v. Northwest Paper Co., supra: “Though the point is not made by plaintiff, the appeal must be dismissed; for it confers no jurisdiction. We have uniformly declined to consider such appeals, even where the parties expressly consent that they may be heard.” As is said in Persons v. Simons, 1 N. D. 243, at page 245, 46 N. W. 969, quoting what is still the first subdivision of section 7225, defining orders that are reviewable as “an order affecting a substantial...