64 Minn. 136 | Minn. | 1896
In tbis action tbe jury returned a verdict for plaintiff for one cent. Immediately after tbe verdict was recorded, it was set aside by tbe court of its own motion, and neither party objected thereto. Thereafter defendant moved for judgment notwithstanding tbe verdict, which motion was made on “tbe files, records, proceedings, and testimony herein,” and upon the affidavits of plaintiff’s attorney, in one of which be stated “that, at tbe close of tbe testimony, defendant moved the court for a direction of a verdict as to tbe cause of action set out in the complaint.” Tbe court below granted tbe motion, and tbe order granting tbe same, so far •as here material, reads as follows: “The court being duly advised in the premises, and said court being satisfied that tbe motion made “by defendant herein at tbe close of tbe testimony, for direction of verdict as to tbe cause of action set out in tbe complaint, should Lave been granted, tbe ruling of tbe court thereon having been duly excepted to: Now, therefore, it is hereby ordered that tbe defendant herein have judgment against tbe plaintiffs for bis costs and dis
1. It will be observed that the above-recited order of the court and the affidavit of defendant’s attorney both state that, at the close of the evidence, defendant moved for direction of a verdict in his favor as to the cause of action set out in the complaint. The settled case discloses no such motion. We are clearly of the opinion that the settled case must control, and cannot be contradicted or impeached by the statements in the order and affidavit. This is a well-settled principle. Then, for the purposes of this appeal, it must be held that no such motion was made on the trial.
2. This is certainly not a case in which, on common-law principles, the defendant was entitled to judgment notwithstanding the verdict, and defendant’s motion was evidently made on Laws 1895, c. 320. That statute provides:
“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 verdict, or on motion 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 or its favor.”
It also provides that the supreme court may do likewise on appeal.
It is very plain, from the reading of this statute, that a motion to direct a verdict must be made at the close of the testimony, in or
3. But there is still another reason why the judgment should be reversed. When the motion for judgment notwithstanding the verdict was made, the verdict had been set aside, without objection or exception by either party, and the case stood for trial as though no trial had ever been had. The trial had been annulled, the order annulling it had not been set aside, and defendant h'ad never moved to have it set aside. Then there was no trial, with its evidence or proceedings, on which the defendant could move for the statutory verdict to be entered by the court, by its order, as provided in said chapter 320 ^ and defendant had not asked, in his motion, to have the evidence and proceedings reinstated or restored. The order of the court, of its own motion, reinstating and restoring the evidence and proceedings, did not cure the defective character of defendant’s motion; and, if it did anything, it was only to add, for the purposes of this appeal, additional error to the record.
The judgment appealed from should be reversed, and the case ordered to stand for trial on the original order setting aside the verdict. So ordered.