68 A. 459 | N.H. | 1907
This case was submitted to the jury upon its merits, without a motion for a nonsuit, a verdict, or judgment having been interposed by the defendant. The jury disagreed and were discharged. The defendant then moved for judgment, on the ground that the evidence in the case would not warrant a verdict for the plaintiff on the issue raised by the pleadings. The motion was denied, and the defendant excepted. We are therefore called upon to consider whether the question of the sufficiency of evidence to support a material issue in a case can be raised by a motion made at this stage of the proceedings.
This is not the first time the question has been before the court. An examination of the cases discloses that it has been held that the moving party waives his right to call in question the sufficiency of the evidence to sustain such an issue, when his motion is not seasonably made; and that it is not seasonably made after the case has been submitted to the court or the jury. If the motion is interposed after that time, the presumption is, unless the *406 facts in evidence disclose the contrary, that the deficiency in the evidence is capable of being supplied; but as the plaintiff then has no opportunity to supply it, the motion comes too late.
In Brown v. Insurance Co.,
In Lane v. Hill,
The motion in this case having been made after the issue raised by the pleadings had been submitted to the jury, and as the facts presented by the record do not disclose that the deficiency in the evidence is incapable of being supplied, the same result follows. It is unnecessary to consider the circumstances under which a motion for judgment non obstante veredicto, or a motion in arrest of judgment upon an adverse verdict, may properly be made, or the questions that may be raised by them. It may, however, be said that it has not been understood that the question of the legal sufficiency of evidence to sustain a material issue could be so raised. Lovell v. Sabin,
Exception overruled.
All concurred. *407