Stormon v. District Court ( 1949 )

The plaintiff has filed a petition for rehearing in which he questions our statement that an order denying a motion for judgment notwithstanding the verdict is not appealable. To avoid any further misunderstanding on this point we quote what we said in Gray v. Elder, 61 N.D. 672, 240 N.W. 477,

"An order denying a motion for judgment notwithstanding the verdict is not an appealable order. It is only when the same is coupled with a motion for a new trial and the court denies the the motion for judgment but grants or denies the motion for a new trial that the moving party `may appeal from the order as a whole and have the ruling on the motion for judgment notwithstanding the verdict reviewed in the Supreme Court.' Welch Mfg. Co. v. Herbst Department Store, 53 N.D. 42, 204 N.W. 849." This statement of the law is applicable under our present statute, section 28-1509, 1947 Supplement to the North Dakota Revised Code of 1943 (Chapter 220, Session Laws ND 1945) which provides,

"If the motion for judgment notwithstanding the verdict be denied, the Supreme Court, on appeal from the judgment, may order judgment to be entered, when it appears from the testimony that a verdict should have been so directed; and it may also so order on appeal from the whole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order."

See also § 28-1511, Rev Code ND 1943. Rehearing denied.

NUESSLE, Ch. J., and BURKE and CHRISTIANSON, JJ., and GRONNA, District J., concur.