9 N.W.2d 346 | Minn. | 1943
Plaintiff sued to recover for personal injuries. The jury disagreed and was discharged. Defendant Van Loon then moved under Minn. St. 1941, §
Plaintiff moves to dismiss the appeal upon the ground that dismissal of the action below is authorized under §
1. Under §
"When, at the close of the testimony, any party to the action moves the court to direct a verdict in his favor, and such motion is denied, upon a subsequent motion that judgment be entered notwithstanding the verdict, or notwithstanding the jury has disagreed and been discharged, the court shall grant the same if the moving party was entitled to such directed verdict."
In Johnson v. Burmeister,
"If the court grants the motion, the order is not appealable; but in that event a judgment may be entered upon the order, which is appealable so far as the adverse party is concerned. Where a *169 verdict has been returned and the motion for judgment notwithstanding is denied, the order is not appealable; but here also a judgment may be entered on the verdict and an appeal taken from the judgment in which the order may be reviewed. But where there is a disagreement and a motion for judgment notwithstanding is denied no judgment can be entered. So far as the court below is concerned the case stands as if never tried. There has been no determination of the cause of action on the merits so as to make the order appealable under G. S. 1923, § 9498(3) — the section specifying the appealable orders and judgments."
Sections
The condition, which the defendant's right to move for judgment notwithstanding a disagreement of the jury imposes on the plaintiff's right voluntarily to dismiss, may be removed. All that the statute intends is that the defendant should have an opportunity to move for judgment non obstante. When he has done that, he has exhausted the right which the statute accords him. In the Floody case we held that the condition which the defendant's right to appeal imposes on plaintiff's right to dismiss after a new trial has been granted may be lost by the defendant's non-action, that is, by failure to appeal during the time allowed therefor. We there said (
"Of course, if in such case [where a new trial is granted] defendant should not, within the time allowed therefor, appeal from *170 the order vacating the verdict, plaintiff could, within the rule of the Phelps case, thereafter dismiss his action."
Where the defendant acts and exercises his right, the purpose of the statute has been satisfied. In the instant case defendant exercised the right to move for judgment nonobstante. By so doing, the only condition upon plaintiff's right to dismiss under §
2. In answer to a further point raised by defendant that the denial of judgment non obstante is reviewable under §
It appears that the sole object of the appeal is to obtain a review of the order denying the motion for judgment nonobstante. Since that order cannot be reviewed on appeal from the judgment of dismissal, the appeal should be dismissed.
Appeal dismissed. *171