This аction was brought by plaintiff to recover money alleged to have been paid for defendant on a judgment rendered against plaintiff on account of a warranty plaintiff made of lands held, sold and deeded by plaintiff for defendant. Therе was a trial and verdict for plaintiff for $826.20. Defendant, on the third day thereafter, filed a motion for judgment non obstante veredicto, which was overruled.
A motion for judgment non obstante veredicto is not a motion allowed to the defendant in a cause. In point of legal practice it is a motion which a plaintiff may make where on аccount of defendant’s answer he, defendant, is not entitled to a j udgment in his favor. It is only proper where “upon the defendant’s own showing, that in any way of putting it, he cаn have no merits, and the issue joined thereon be found for him, there, as the awarding of a repleader could not mend the case, the court for the sake of the plaintiff, will at once give judgment non obstante veredicto.” [2 Tidd’s Practice, 922; Billows v. Shannon,
Defendant suggests that the motion as made by him should nevertheless be considеred as a motion for judgment on the pleadings. But that cannot be done, since suсh a motion could only be made either before a verdict, or after a verdict which has been set aside. That was the condition when the motion was made in Hurt v. Fоrd. But here the verdict'is in full force and therefore there is no room for a judgment on the pleadings. [Hurt v. Ford, supra, 299.]
But defendant did assert a remedy of practice which he may properly invoke. He filed in proper time and form another motiоn, viz.: a motion in arrest of judgment.
That motion brings us to the question whether the face of thе petition shows plaintiff not to have a cause of action. We have nо doubt of its stating a good cause. In substance it alleges that plaintiff was agent for defendant and at its request he purchased and held the title to a lot of land in Lоuisiana, which, at its request, he sold and executed his warranty deed therefor to thе purchaser. That afterwards he was sued for breach of the warranty and that hе duly notified defendant, who declined to defend him. That he then made defense, and inсurred expenses therein, but judgment was rendered against him on the warranty.
The expеnses of that litigation were properly allowable to plaintiff so long as they were reasonably incurred in a reasonable and proper defense. And counsel fees are properly allowed in such cases. [State ex rel. v. Tittman,
The petition does not show that the Statute of Limitations had run upon plaintiff’s claim when he brought this aсtion. His claim for reimbursement for money paid out on the judgment did not arise until he pаid the judgment; and as it was not rendered until June 13, 1906, as shown by the petition, and this suit was filed within six months therеafter, no statutory period of any kind had elapsed.
As for the question of limitations on the expenses in defending the suit, we should consider such expenses as like a running account, with the last item saving all others.
Neither does the petition show a сase to which the Statute of Frauds could, apply in either of the respeсts suggested by defendant.
Nor does the petition show that the arrangement made with рlaintiff was ultra vires.
Much of defendant’s argument and brief is as though it had filed a motion for neAV trial and was not only entitled to a hearing on alleged errors at the trial; but on the merits as well. This we have shown cannot be allowed. We have no doubt whatever as to our lack of rightful authority to disturb the judgment, and it is accordingly affirmed.