164 P. 881 | Wyo. | 1917
This case, which is here on error, was tried in the District Court on appeal from a justice’s court. The action was originally brought by the plaintiff in error, E. N. Campbell, in the court of J. E. Hoop, a justice of the peace in Sheridan county, to recover of the defendant in error, A. D. Weller, the sum of $65.00 claimed to be due for the hire of a livery team and 'buggy. The defendant filed a motion and affidavit for change of venue, which was granted and the cause set for trial before C. P. Story, justice of the peace of the same county, at a stated day and hour, whereupon a certified transcript of the docket entries of the first named justice and all papers in the cause filed in his court were transferred to the court of the. other justice. The parties appeared in that court by attorneys at the time fixed by the justice granting the change, and the case was continued by consent until another date, and the trial set for that date by consent, at which time, the parties and their attorneys being present, a trial was had before a jury resulting in a verdict and judgment thereon for the plaintiff for $63.50 and costs, to which the defendant excepted. Within the time provided by law the defendant filed with the justice before whom the trial was had a notice of appeal, and an appeal undertaking, which was accepted, and thereupon said justice made up a certified transcript of his docket entries with bill of costs, which, in proper time, was filed with the clerk of the District Court; and, as stated in the bill of exceptions, said appeal was taken directly from the court of said justice. Prior to and on the day of the trial the plaintiff filed a petition in the cause, — in its caption describing the cause as in “Justice Court of C. P. Story;” and the cause was so entitled in defendant’s answer.
In the District Court a motion of the plaintiff to dismiss the appeal was overruled, which ruling was excepted to by the plaintiff, and on a trial by jury a verdict was returned in plaintiff’s favor for the amount of his claim. At the close of
It is contended, on two grounds that the motion to dismiss the appeal should have been granted: (1) That the justice from whose court the appeal was taken was without authority to allow the same. (2) That the notice of appeal was insufficient. The contention as to the first ground is that the justice before whom the casé was tried and who rendered judgment as aforesaid had no authority to allow the appeal, or to transfer the papers in the cause to the District Court, but that, after judgment, he should have returned all the papers to the justice in whose court the case was commenced, who only was authorized to allow ah appeal, as provided by Section 5220, Compiled Statutes, 1910, one of the-sections of the justices’ code found in the chapter entitled, “Change of Place of Trial”; the material part of the section reading as follows:
“The justice granting such change shall make all necessary docket entries, issue all required processes and have full jurisdiction of the case up to the time the justice who is to take his place appears, when he shall turn over his docket and all papers in the case to the justice selected to try the same, and such justice shall take charge of and be responsible for the docket, continue the docket entries and*74 issuance of all processes and papers, to the close of trial and judgment, whereupon he shall return said docket, and all the papers in the case to the justice having original jurisdiction thereof, as aforesaid, and such justice shall issue all further processes, writs of execution and orders, and grant appeals, stay of execution, and perform any other act or thing required 'by law, the same as if no change of place of trial or of justice had been granted or had.”
Counsel for defendant contend that the appeal was properly taken from the justice rendering the judgment, first, because that is required by the provisions of the justices’ code specifically regulating appeals, found in Sections 6261 and 6262, Compiled Statutes, which, having been subsequently enacted, impliedly repealed any contrary provision of Section 5220; the sections thus relied on providing that the notice of appeal shall be filed with the justice by whom the judgment was rendered, and that within five days after the filing of the notice and payment of the costs, or the filing of the bond to secure the same, the justice shall allow the appeal, make a certified transcript of his docket entries and bill of costs, and transmit the same with all papers filed in the case to the clerk of the District Court.
These appellate provisions, it is further contended, are applicable for the reason that, although the transfer of the cause to the justice who tried it was without authority, jurisdiction was acquired by the justice before whom it was tried through the voluntary appearance of the parties in his court, the filing of pleadings and consent to trial therein; and counsel refer to Section 5193, Compiled Statutes, 1910, authorizing the commencement of a civil action before a justice by the appearance and agreement of the parties without summons, and Section 5235 providing for a trial when the parties agree to enter, without process, “any action of which the justice has cognizance.”
The controversy respecting the proper method of appeal in this case from the justice court to the District Court is ill part the result of conflicting provisions of the justices’ code, as published in the Compiled Statutes of 19-10, concerning
As published in the Revised Statutes of 1899, the first section of said chapter, which specifies the causes for objecting to a trial before a justice, and had provided for a transfer of the suit and the papers therein to some other justice of the same or adjoining precinct, the words authorizing a transfer to a justice of the same precinct were omitted, so that the provision was made to read that the suit and papers shall be transferred “to some other justice of an adjoining precinct.”- (Rev. Stat. 1899, Sec..4352.) The evident cause if not justification for that change in the section, as so published, was the amendment of the statute relating to the election of justices of the peace by providing for the election of but one justice in any precinct. And, evidently for the same reason, in publishing in that revision Section 1 of the Act of 1884, which had become Section 3446 of the Revised Statutes of 1887, the words thereof stating the conditions authorizing another justice to be called in to try the case in the court where pending were omitted, thereby making the section provide that when any change of place of trial shall be granted, the nearest qualified justice shall be notified to appear at the office of the justice granting the change. (Rev. Stat. 1899, Sec. 4357.) And those sections are published in the Compiled Statutes of 1910 in the same form as in the revision of 1899. (Comp. Stat. 1910, Secs. 5214, 5219.)
It thus appears, from a reading of the several provisions as they were enacted, that' the authority to send the cause to the court of a justice of an adjoining or any other precinct was taken away by the Act of 1884 aforesaid, by providing, instead of such a transfer, for a trial by the next nearest qualified justice at the office of the justice granting the change, if . there should be no qualified or available justice of the same precinct or if any such justice was objected to,
We think it clear that Section 5220, when originally enacted as Section 2 of the Act of 1884, applied only to cases where another justice was notified to- appear and proceed with the case at the office of the justice granting the change. It could not have applied to a cause transferred to another justice to be proceeded with and tried in his court, which remained authorized and possible if there was another qualified and available justice, not objected to-, in the same precinct as the justice granting the change, for in such case the statute made no provision for a return of the cause or the papers to the justice who had transferred the same. And for evident reasons it can now -be applied only where the cause has remained in the court where commenced, or pending when the change was granted, and the other justice has conducted therein the proceedings had before him.
. That was not the procedure in this case. The case was not tried before or in the couft of the justice before whom
The contention that the notice of appeal was insufficient cannot be sustained. The obj ections urged against it are that it did not sufficiently describe the judgment, because failing to state the findings of the jury and the amount respectively of the judgment and costs, and did not purport to be a notice to the plaintiff as appellee, but merely notified the justice of the desire to appeal. After stating in the caption the title of the cause the notice states, that said cause having been tried
We think it sufficiently described the judgment. The statute provides as to the notice merely that within 15 days after the rendition of the judgment the person desiring to appeal shall file with the justice a notice of such desire. Neither the form nor the substance of the notice is prescribed. No doubt it should be reasonably certain as to the judgment appealed from, but there is no substantial reason for requiring that the amount be stated if it can be and is sufficiently identified without it, and certainly none for stating the findings or verdict of the jury. The title of the cause and the court wherein it was tried and determined are stated in the notice, and also that it was tried by a jury, the date of the trial and judgment, and defendant’s desire to appeal. Having thus identified the cause, the party appealing, and the judgment, it must be held sufficient. (24 Cyc. 689; Allen v. Byerly, 32 Ore. 117, 48 Pac. 474; State v. Superior Court, 7 Wash. 223, 34 Pac. 922; Friemark v. Rosenkrans, 81 Wis. 359, 51 N. W. 557; Noall v. Halonen, 84 Wis. 402, 54 N. W. 729; Hender v. Ring, 90 Wis. 358, 63 N. W. 282.)
It was not necessary that the notice be directed to the opposite party, nor does it seem to be intended by the statute as a notice to such party; a notice to him is provided for to be issued by the clerk of the District Court, upon receiving and filing the transcript and papers, and served in the same manner as a summons. (Comp. Stat. 1910, Sec. 5263.)
The defendant’s motion for a directed verdict in his favor, made at the close of plaintiff’s evidence, was on the ground that such evidence was insufficient to' sustain a verdict for the plaintiff; and the motion for judgment notwithstanding
“When, in the trial of a civil action, a motion is made by either party that a verdict be directed in favor of such party, or an instruction to that effect is requested, and the motion or instruction is denied, the trial court, on motion by such party for a new trial or for judgment notwithstanding -the verdict, may order judgment to be entered in favor of the party who was entitled to have a verdict directed in his favor; and the Supreme Court, in reviewing the judgment on exceptions arid error, may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his favor, whenever it shall appear from the pleadings and evidence that the party was entitled to have his motion or request for a directed verdict granted.”
Without that or a similar statute adjudgment notwithstanding the verdict based merely upon the evidence would be unauthorized. (Jones v. Chicago, B. & Q. R. Co., 23 Wyo. 148, 147. Pac. 508.) The statute was referred to in the case cited, but not considered further than to state that if it might otherwise have applied it would not apply in that case for the reason that there was no verdict, the jury having ■been discharged upon failing to agree ;■ and we said that the statute followed a statute of Minnesota and North Dakota. While not a literal copy of the statute in either of those states, it is in substance the same, following more closely the North Dakota statute, except that in each of the states aforesaid the statute provides that when the motion for directed verdict has been made and denied, the trial court, on a motion for judgment notwithstanding the verdict or for a new trial, “shall” order judgment to be entered in favor of the party who was entitled to have a verdict directed in his favor, while our statute provides that the court “may” order such judgment to be entered, making the statute in that respect permissive instead of mandatory, as held under a similar statute in Massachusetts. (Grebenstein v. Stone & Webster Eng. Corp., 205 Mass. 431, 440, 91 N. E. 411.) And the
Applying the North Dakota statute, it is held that a motion made by a defendant for a directed verdict in his favor at the close of plaintiff’s case must be renewed at the close of all the testimony to authorize a judgment for defendant notwithstanding a verdict for the plaintiff. (Landis Machine Co. v. Konantz Saddlery Co., 17 N. Dak. 310, 116 N. W. 333; McBride v. Wallace, 17 N. Dak. 495, 117 N. W. 857.) And we have seen nothing in the Minnesota decisions indicating a contrary practice in that state, although the point does not seem to have been decided there except by holding that to authorize the judgment there must be a motion or requested instruction for a directed verdict at the close of the testimony. (Netzer v. Crookston, 66 Minn. 355, 68 N. W. 1099.) It was also held in Landis Mach. Co. v. Konantz Saddlery Co., supra, that where a defendant introduces testimony after a denial of his motion at the end of plaintiff’s case without renewing the motion at the close of all the testimony, he waives his right to have the ruling on such motion reviewed. And that is the general rule. (38 Cyc. 1590, 1591; Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. Ed. 266; U. P. Ry. Co. v. Callaghan, 161 U. S. 91, 16 Sup. Ct. 493, 40 L. Ed. 628; Huellmantel v. Vinton, 112 Mich. 47, 70 N. W. 412; Bernheimer v. Becker, 102 Md. 250, 62 Atl. 526, 3 D. R. A. N. S. 221, 111 Am. St. Rep. 356; 111 Am. St Rep. 356; Langan v. Enos Fire Escape Co., 233 Ill. 308, 84 N. E. 267; Cincinnati Traction Co. v. Durack, 78 O. St. 243, 85 N. E. 38, 14 Ann. Cas. 218; Wild v. Boston & Maine R. Co., 171 Mass. 245, 50 N. E. 533; Greder v. Stahl, 22 S. Dak. 139, 115 N. W. 1129.)
■ The clear purpose of the statute was to save the necessity in proper cases of ordering a new trial for error in refusing to direct a verdict, and thus, SO' fat as that might do it, expedite the final determination of causes, as stated in the title of the act. The statute was enacted in Minnesota in 1895, and it was explained and construed as to its effect in Cruikshank v. St. Paul F. & M. Ins. Co., 75 Minn. 266, 77 N. W. 958. After referring to the common law rule authorizing a judgment non obstante veredicto only upon the record, and then only when it was clear that upon the pleadings the cause of action, or the defense, did not, in point of substance, constitute a legal cause of action or defense, the court, in the case cited, said:
“By enacting Taws 1895, C. 320, the Legislature was not creating a new remedy, but merely extended, as has been done in many other states, the common law remedy to cases where, upon the evidence, either party was clearly entitled to judgment. In thus extending the remedy it must be presumed that the Legislature' intended it -to be governed by the same rules which applied when it was granted upon the record alone; that is, that it should not be granted unless it
And that construction is followed in North Dakota, the Supreme Court of that state saying, in Aetna Indemnity Co. v. Schroeder, 12 N. Dak. 110, 95 N. E. 436, 1 Ann. Cas. 368:
“Plaintiff moved for a directed verdict in his favor at the close of the testimony, and, after verdict, asked for judgment notwithstanding the verdict or for a new trial. It is now urged that judgment notwithstanding the verdict should be directed by this court, under the provisions of Chapter 63, p. 74, Daws 1901. That law was originally enacted in Minnesota in 1895, and the construction placed upon it by the Supreme Court of Minhesota is deemed to have been adopted by its enactment in this state. The practice is well settled in that state that a motion for judgment notwithstanding the verdict will only be granted in those cases where it is clear, as a matter of law, upon consideration of all the evidence, that the cause of action or defense has not been shown in point of substance. If it appears probable from the evidence produced at the trial that proof can be supplied on another trial to cure the defect, such motion will be denied. (Marquardt v. Hubner, 77 Minn. 442, 80 N. W. Rep. 617; Cruikshank v. Insurance Co., 75 Minn. 266, 77 N. W. Rep. 958; Richmire v. Andrews & Gage Elev. Co., 11 N. D. 453, 92 N. W. 819.) In other words, such motion for judgment will not be granted in case of conflict of evidence, although such conflict is such that the trial court will be justified, in its discretion, in granting a new trial notwithstanding it. The party.making such-a motion must base it upon a state of facts that will warrant the court in granting it, without tres
And such construction of the statute is held necessary to prevent its infringing upon the constitutional right of a party to have the facts determined by a jury instead of absolutely by the court. (Kernan v. St. Paul C. R. Co., 64 Minn. 312, 67 N. W. 71; Marengo v. Great Northern Ry. Co., 84 Minn. 397, 87 N. W. 1117, 87 Am. St. Rep. 369; and see note to note to B. & O. R. Co. v. Nobil, Ann. Cas. 1913A, 1024, stating the result of the Minnesota and North Dakota decisions under the statute aforesaid,. and citing cases.) In Minnesota, also, while the motion for judgment may be combined with a motion for new trial, and that seems to be the usual practice in that state, asking either relief in the alternative, it is held that the statute does not authorize the entering of such judgment merely upon a motion for new trial. (Kernan v. St. Paul C. R. Co., supra; Crane v. Knauf, 65 Minn. 447, 68 N. W. 79; Netzer v. Crookston, supra; and see St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N. W. 1077.)
While we think that the previous construction in the states aforesaid respecting the general effect of the statute must be held to have been adopted with the enactment of the statute in this state, we are not, perhaps, bound by .the construction in those- states as to the time for making the prerequisite motion for a directed verdict based upon the provision of their statute for making it “at the close of the testimony,” since the words specifying that time for the motion are not in our statute. But there does not seem to us to be any substantial distinction between the statutes in that respect. The statute is to be understood as providing for a judgment not upon part but upon all of the evidence submitted to the jury and upon which the verdict was rendered, when a motion or request that a verdict be directed upon that evidence has been denied. A different interpretation, one that would permit a judgment for defendant notwithstanding the verdict upon a consideration alone of the plaintiff’s evidence, where evidence introduced by the defendant was submitted to and
A furth'er and convincing reason for this construction, when the defendant has introduced evidence after a denial of his motion for a directed verdict at the close of plaintiff’s case without renewing the motion or requesting such an instruction at the close of all the evidence, is found in the apparently well settled rule aforesaid that the defendant, under such circumstances, waives his motion. It is clear that in such case the ruling denying the motion, though erroneous, would not be ground for new trial. That question was discussed at length, with a review of the’authorities, in Cincinnati Traction Co. v. Durack, supra, where it was held by the Supreme Court of Ohio that the defendant loses the benefit of his motion made at the close of plaintiff’s case by introducing evidence without afterwards renewing the motion, o'r, as said in the opinion: “In other words, proceeding with the defense waived the motion, unless it was afterwards renewed.”
The motion and the error, if any, in denying it, having been waived, it is difficult to see how it can have any standing in the case as one of the prescribed conditions authorizing a judgment notwithstanding the verdict. The manifest object of the statute, as above indicated, is to allow such a judgment upon a proper motion when justified by the evidence under the issues, instead of granting a new trial. That is to say, that the error, if any, in refusing upon motion or request to direct a verdict, which, prior to the enactment of the statute, could have been alleged only as ground for new trial, may also be a ground for judgment notwithstanding the verdict. B’ut it must be an error of which the moving
The defendant having waived his motion for a directed verdict in his favor, the judgment was not authorized by the statute. As the defendant’s motion for new trial was not acted on by the trial court, it does not seem proper for us to consider the points discussed by counsel with reference to the right of the plaintiff to recover upon his evidence. ■ The judgment will be reversed, and the cause remanded with instructions to enter a judgment upon the verdict unless a new trial be granted upon defendant’s said motion therefor.
Reversed.