42 Neb. 712 | Neb. | 1894
The city of Orleans sued the plaintiffs in error, alleging that the plaintiffs in error were, in 1885, the owners of certain property in the then village of Orleans; that they negligently made an excavation in the street adjoining their property and left the same without guards or protection for travelers; that one George S. Perry fell into said excavation and was injured, brought action against the defendant in error, recovered judgment, which was paid; that the defendant in error had informed plaintiffs in error of thé pendency of such action, and that they had undertaken and conducted the defense thereof. The prayer was for a judgment indemnifying the city. The answer admitted the incorporation of the city and the ownership of the property as charged in the petition, and denied every other allegation. There was a trial to a jury, which found a verdict in favor of the^city^for $1,325,. The city then moved the courTT1Yré5ter up judgment notwithstanding the verdict, against the defendants, on the evidence, for the sum of $4,206.97, non obstante veredictoThis motion the court sustained and entered judgment in the sum requested. The plaintiffs in error then filed *a motion for a new trial, assigning numerous errors. This motion was overruled. The plaintiffs in error, on argument, abandon all assignments of error except those relating to the action of the court in sustaining the motion for judgment non obstante veredicto. The motion seems to have been made
At common law, judgment non obstante veredicto was entered where a plea was good in form though not in fact, as where it confessed the cause of action but did not sufficiently avoid it. In other words, where by defendant’s own showing by plea the plaintiff was entitled to judgment. In such case, notwithstanding a verdict for defendant upon the immaterial issue joined, judgment would go for the plaintiff on the record. (1 Chitty, Pleading, 656; Oades v. Oades, 6 Neb., 304.) Our Code does not provide a remedy in such cases by the common law name, but the substance of the procedure is preserved by section 440, which provides: “Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.” Neither this section nor the common law procedure is applicable to this record. There was an answer amounting to a general denial, and, therefore, upon the pleadings the plaintiff was not entitled to judgment. It would require a verdict or finding in favor of the plaintiffs upon the issues so made in order to authorize judgment. On the other hand, section 438 applied. This section is as follows: “When a trial by jury has been had judgment must be rendered by the clerk in conformity to the verdict,i unless it is special, or the court order the case to be reserved-
Reversed and remanded.