This appeal involves two actions for personal injuries suffered in a train-automobile collision, which plaintiffs, passengers in the automobile, allege resulted from the negligence of the driver of the automobile and the two defendant railroads. The actions were consolidated for trial and for purposes of this appeal. The jury *23 was instructed to regard the defendant railroads as a single entity. Verdicts were returned against the railroads but in favor of the automobile driver, Leighton. The railroads moved for judgment in their favor, notwithstanding the verdict; or, in the event such motion was denied, for judgment against Leighton notwithstanding the verdict; or, in the event judgment in their favor was denied, for a new trial on all issues. This motion was denied, and defendant railroads appeal from such denial.
Subsequently, the railroads and both plaintiffs entered into a stipulation for settlement for a sum less than the verdicts, in consideration for which any issues as between them on this appeal were deemed settled, and the railroads were released from all liability. The stipulation provided that such settlement should affect in no way the issues as between the railroads and Leighton and that plaintiffs would remain nominal plaintiffs for purposes of allowing the railroads to proceed against Leighton. In view of the settlement, there is no assignment of error relating to the denial of that part of the motion requesting judgment in favor of the railroad since that matter is obviously rendered moot. The only errors assigned relate to the denial of judgment against Leighton notwithstanding the verdict and the denial of the motion for a new trial.
Defendant Leighton moved for dismissal of this appeal on several grounds. This motion was denied in Muggenburg v. Leighton,
An unsuccessful defendant in such a case as presented here may challenge a verdict or ruling in favor of a codefendant even though there is no cross claim between them because a judgment rendered on such a verdict or ruling conclusively and finally determines that such codefendant is not liable to plaintiff thus precluding the unsuccessful defendant from ever recovering contribution from such codefendant. Bocchi v. Karnstedt,
The appealability of that part of the order denying the motion for judgment against the codefendant appears to be a question of first impression. The jurisdiction of this court on appeal is limited by statute. M. S. A. 605.01; In re Guardianship of Hudson,
Nor does the fact that the motion for judgment against Leighton is joined with a motion for a new trial render it appealable. A nonappealable order is not rendered appealable by virtue of the fact that it is joined with an appealable order. 1 Dunnell, Dig. (3 ed.) § 296a. An order denying an alternative motion for judgment
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notwithstanding the verdict or for a new trial is rendered appeal-able by M. S. A. 605.06. See, 3 Dunnell, Dig. & Supp. § 5086. But, clearly, this section refers to a motion for judgment in favor of
the moving party.
An alternative motion for judgment against a codefendant, notwithstanding a verdict in his favor, or for a new trial is not authorized by this or any other section. Where part of an order appealed from is appealable and part is not, only that part which is appealable is presented for review. Storey v. Weinberg,
Thus, the only matter presented for review is that part of the order denying the railroads’ motion for a new trial on all issues. The reversal of an order denying a new trial leaves the case in the status it occupied before the first trial. Quinn-Shepherdson Co. v. U. S. F. & G. Co.
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This does not mean that the railroads cannot
now
have the review of the verdict in favor of Leighton. If the railroads choose to take appeal from the judgment, for instance, we could review the verdict in favor of Leighton and could order judgment against Leighton thus conclusively establishing Leighton’s liability to plaintiff, and the railroads could then proceed against him for contribution by means of the summary method provided by M. S. A. 548.19; or, if we did not feel that the evidence warranted such disposition but felt there was prejudicial error in the trial affecting the issue of Leighton’s liability, we could, if proper foundation was laid below, order the lower court to vacate the judgment in its entirety, which would allow the railroads to proceed against Leigh-ton in an original action, after settlement, for contribution and to establish for the first time the liability of Leighton to plaintiff. See, D. M. & N. Ry. Co. v. McCarthy,
Appeal dismissed.
Notes
Even in the absence of the Vigen rule, it would seem that a defendant would be prejudiced by an erroneous verdict in favor of a codefendant since it would preclude him from the summary method of recovering contribution as provided by M. S. A. 548.19. See, Akin v. Lake Superior Consol. Iron Mines,
Thus, even if the alternative motion for judgment against a defendant notwithstanding a verdict or a new trial was considered appealable by M. S. A. 605.06, that part of the motion asking for a new trial is now moot and the balance, as previously discussed, is nonappealable.