In this аction for damages for personal injuries alleged to have been caused by the negligence of the defendant, the trial court denied defendant’s motion for a directed verdict at the close of thе testimony, and submitted the issues to the jury, but after the jury disagreed and was discharged, it granted the defendant’s motion for judgmеnt notwithstanding such disagreement, and entered judgment *225 accordingly. The appeal is from the judgment, and the cоntention is that the court exceeded its jurisdiction in-so entering judgment.
The power of our courts to enter judgment notwithstanding the verdict is limited by SDC 33.1705. Kerr v. Staufer, 59 S. D. 83,
“In all cases where at the close of the testimony in the case tried, a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion was denied, the trial court on motion made, that judgment be entered notwithstanding the vеrdict, or on motion for a new trial, may order judgment to be entered in favor of the party who was entitled to have a verdict directed in his or its favor.
“The Supreme Court on appeal from an order granting a nеw trial, or upon a review of an order denying a new trial in the action in which such motion was made, or on appeal from the judgment, may order and direct judgment to be entered in favor of the party who was entitlеd to have such verdict directed in his or its favor, whenever it shall appear from the testimony that the party was entitled to have such motion granted.” SDC 33.1705.
In support of the ruling of the trial court, defendant’s counsel assert that the purpose of the foregoing provision is to clothe the court with power to review its ruling on the motion for a directed verdict in furtherance of justice and to avoid unnecessary retrials, and that such purpose can only be made completely effective by an interpretative holding that the power to enter judgment notwithstanding a disagreement of the jury is fairly to be understood although not expressed. In suрport of this view they cite Domarek v. Bates Motor Transport Lines, 7 Cir.,
Unless SDC 33.1705 has the scope defendant’s counsel suggests, important rights accrued to the plaintiff upon the disagreement and discharge of the jury. The сourt could not and did not reserve decision on the motion for a
*226
directed, verdict. SDC 33.1314 provides, “The Court shall decide the issue raised by such motion before submitting the case to the jury.” In discharging the jury the court said, “* * * if you feеl that there is no prospect of reaching an agreement, why perhaps we better call what we call a mistrial and be back where we started yesterday morning.” In such circumstances the case was fоr retrial “immediately or at a future timé, as the Court may direct.” SDC 33.1328. Jones v. Chicago, B. & Q. R. Co.,
Express provision has been made for the entry of judgment in cases where the jury has been unable to agree in North Dakota, 28—1510 R.C. 1943, and in other states. A like provision appears in 50(b) of the Federal Rules оf Civil Procedure, 28 U.S.C.A. Cf. Annotation
In terms the rule-utterly fails to clothe the court with the power it exercised. It only purports to afford a remedy to a litigant against whom a verdict has been found. It authоrizes only a judgment “notwithstanding the verdict”.
*227 The argument is that the prerequisites to granting judgment are met when a motion fоr a directed verdict has been made and denied. It is said “The verdict is an immaterial formality.” We are told that we are justified in such a holding in furtherance of the underlying purpose to avoid unnecessary second trials. By parity of reasoning it could be said that the motion for a directed verdict should be treated as an immaterial formality and justify a court in entering judgment for a litigant on motion made after the discharge of the jury, if in fact under the pleadings and evidence he was entitled to such judgment as a matter of law, even though he had mаde no motion for a direction during the trial. Thus it becomes apparent that the rule does not purpоrt to completely serve the purpose which motivated its enactment. We think the rule was intended to limit the power it grants. It fails to provide for a judgment notwithstanding a disagreement of the jury. Therefore, we hold that thе trial court exceeded its powers.
It is perhaps unnecessary to say that our holding should not be interpreted as indicating our views upon the merits.
.The judgment of the trial court is reversed.