Olson v. Ottertail Power Co. , 65 N.D. 46 ( 1934 )

I dissent. The proposition stated in paragraph one of the syllabus is contrary to a practice recognized and followed in this state by bench and bar so long that "the memory of man runneth not to the contrary." During that long course of time numerous legislative measures touching the practice on appeal have been enacted, all either actually or impliedly recognizing the practice or by their silence sanctioning it. And as a matter of expedience no other practice could well be followed.

The motion for judgment non obstante veredicto was a common law motion. It was required to be made before entry of judgment. 33 C.J. 1187. It originally was available only to the plaintiff and was in reality grounded on a defect in the pleadings. The defendant's corresponding remedy was by motion in arrest of judgment. Freeman, Judgm. 5th. ed. § 10. On the other hand, at the common law, the motion for new trial was made and disposed of before judgment entered. Spanagel v. Dellinger, 34 Cal. 476; Freeman, Judgm. 5th ed. § 185. So our practice with respect to both of these motions is the creature of our statutes and little like its common law ancestor. The first recognition of the motion for judgment notwithstanding the verdict found in our statute is in chapter 63, Sess. Laws 1901, codified as § 7643, Comp. Laws 1913. Richmire v. Andrews G. Elevator Co. 11 N.D. 453, 92 N.W. 819. The same legislature enacted chapter 111, Sess. Laws 1901, now § 7687, Comp. Laws 1913. This latter section provides: "Entry of judgments upon the decision of the court or the verdict of a jury in civil actions in the district court shall not be stayed; but the court may stay execution of such judgment for such reasonable time as may be necessary to move for a new trial in the action or to perfect an appeal from the judgment entered therein." If a motion for judgment non obstante cannot be made or considered after entry of judgment, it necessarily follows under § 7687 that it must be made immediately on the return of the verdict unless by stipulation of the parties entry of judgment is deferred. As a matter of practical operation, the motion thus made can neither be well made, well presented, nor well considered. Furthermore, if a motion for judgment notwithstanding the verdict coupled with a motion for new trial may be made after entry of judgment, there is no logical reason why a motion for judgment notwithstanding the verdict alone should not be made after entry of judgment. And since entry of judgment may not be stayed it seems clear to me that when § 7643, supra, was enacted, it must have been contemplated that the alternative motion might be made after entry of judgment for the same practical reasons that such motion could not be well made, presented, or considered immediately on the return of a verdict. Certainly the generally followed practice has been to make such alternative motions after entry of judgment.

I am aware that as stated in the majority opinion other courts following the common law rule have held that motions for judgment non obstante could not be made after entry of judgment. But in none of the cases where this has been done have the statutory provisions been similar to ours. This court itself has never heretofore been called upon to pass upon the question. The nearest approach was in the case of Schumacher v. Great Northern R. Co. 23 N.D. 231, 136 N.W. 85. In that case there was a verdict in favor of the plaintiff. Judgment on the verdict was entered in March, 1910. An alternative motion for judgment notwithstanding the verdict or for a new trial was made in November, 1910. The court denied the motion in December. In January an appeal was perfected from the order denying the motion for judgment notwithstanding the verdict and for a new trial, and from the judgment. The plaintiff and respondent insisted that, in any event, the motion for judgment notwithstanding the verdict was too late because made after entry of judgment in the district court, and that accordingly the supreme court could not on appeal order judgment non obstante. The court, after holding that the evidence was insufficient to sustain the verdict of the jury, said: "This conclusion necessitates a reversal of the judgment, and it only remains for us to determine whether appellants are entitled to judgment non obstante veredicto as prayed for by them. Respondent contends that a motion for such relief comes too late when made after entry of judgment in the district court, and certain authorities are cited and relied on in support of such contention; but in the light of the clear and specific provisions of our Code (Revised Codes 1905, § 7044, now § 7643, Comp. Laws 1913) which, of course, are controlling . . . we are compelled to overrule such contention." While that case is, in some respects, different from the instant case, nevertheless as I read the opinion it evidences a clear recognition under our statute of the right to make a motion for judgment notwithstanding the verdict after entry of judgment. Surely it is an express holding that the alternative motion may be made after entry of judgment.

It is true that § 7643 does not expressly authorize a motion for judgment notwithstanding the verdict standing alone to be made after judgment, but neither does that section nor any other statutory provision forbid it. The same may be said with respect to a motion for new trial. And if judgment has already been entered the effect of either order is to vacate and set it aside. This is a logical consequence not expressed by statute. Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299, cited in the majority opinion, merely holds that a motion for judgment notwithstanding the verdict may be made either separately or in connection with the motion for new trial, and that the right to move for a new trial is not waived if the motion is not made in connection with the motion for judgment notwithstanding the verdict.

It must also be remembered that § 7643, in its present amended form, controls in the instant case. The section now reads (see 1925 Supplement): "When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request, but upon a subsequent motion, by such moving party after verdict rendered in such action, that judgment be entered notwithstanding the verdict, or if the jury have failed to agree upon a verdict, for a directed verdict, the court shall grant the same if, upon the evidence as it stood at the time such motion to direct a verdict was made, the moving party was entitled to such directed verdict. An order for judgment notwithstanding the verdict may also be made on a motion in the alternative form asking therefor, or if the same be denied, for a new trial. The ruling on the motion for a directed verdict may be reviewed by the Supreme Court without a motion for judgment notwithstanding the verdict or a motion in the alternative for such judgment or for a new trial having been first made in the trial court. 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." And it seems to me it clearly implies that the alternative motion or either of the motions singly may be made after entry of judgment, and that a reading of the last sentence of the section demonstrates this beyond any question. If there could be any doubt as to the right to make the alternative motion or either of the motions singly after judgment entered impliedly recognized in the Schumacher Case, such doubt is wholly dispelled by a reading of this statute.

The theory underlying our statute governing appeals is, generally, that orders reviewable on appeals from judgments are not themselves appealable. Persons v. Simons, 1 N.D. 243, 46 N.W. 969; Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209; Warren v. Slaybaugh, 58 N.D. 904, 228 N.W. 416. Exceptions to the rule embodying this theory are set out in the last clause of the third subdivision of § 7841, Comp. Laws 1913, where it is provided that an order is appealable "when it grants or refuses a new trial, or when it sustains or overrules a demurrer." A moment's reflection makes apparent the reasons for the exception, so far as an order granting or refusing a new trial is concerned. For such an order may be made either before or after judgment is entered, and, consequently may be either intermediate or final in its effect. It may operate to prevent a judgment from which an appeal might be taken, it may vacate a judgment already rendered, or it may stamp such judgment with finality so far as antecedent errors or subsequent remedies in the trial court are concerned. Hence, such orders will always involve the merits of the controversy, but they will not always involve matters reviewable on appeal from a judgment as the error complained of may be subsequent to the judgment. Rather than attempt distinctions, the statute permits orders made in disposing of motions for new trial to be appealable in every case. On the other hand, an order for judgment non obstante requires the entry of judgment, and, accordingly, is always reviewable on appeal from the judgment entered thereon. A motion for judgment non obstante never lies unless foundation therefor has been laid by a motion for directed verdict. Hence, an order denying a motion for judgment non obstante is, in effect, always intermediate, whether made before or after entry of judgment for the reason that on appeal from the judgment the sufficiency of the evidence challenged by the foundation motion for a directed verdict may be considered and determined. Consistently, neither order is appealable. Persons v. Simons, 1 N.D. 243, 46 N.W. 969, supra; Turner v. Crumpton,25 N.D. 134, 141 N.W. 209, supra.

As I view § 7643, it is wholly consistent with the underlying theory that intermediate orders shall not be appealable. When a motion in the alternative for judgment non obstante or for a new trial is made, the question raised is not confined to the present sufficiency of the evidence to sustain the verdict but includes as well a challenge to the ability of the party in whose favor the verdict was returned to supply the deficiency on another trial. And when the motion for judgment non obstante is denied but a new trial is granted, the court, to this extent, rules adversely to the moving party and he is left remediless unless he has a right of appeal notwithstanding the granting of his motion for a new trial. For in such case no judgment can be entered, and unless he has the right of appeal there is no way in which the court's full ruling may be review. To reach this logical result the final clause of § 7643 was added by the 1921 amendment. See chapter 133, Sess. Laws 1921. Prior to this amendment our holding was that in such case there was no right of appeal. See Stratton v. Rosenquist, 37 N.D. 116, 163 N.W. 723.