204 P. 576 | Cal. | 1922
Southern Pacific Land Company instituted the present action against the defendant Dickerson for the purpose of quieting title to and recovering possession of certain land in Imperial County, California, and for damages for withholding possession of the said land. Defendant's answer specifically denied the material allegations of the complaint and, in addition, interposed the defense of the statute of limitations and title by adverse possession. When the cause came on for trial, a jury was impaneled and, after the introduction of evidence, argument of counsel, and oral instructions, the jury returned a general verdict in favor of the defendant Dickerson. Immediately upon the return of the verdict, counsel for plaintiff moved orally in open court for an order setting aside the verdict and for judgment for plaintiff notwithstanding the verdict. After a hearing, the court granted this motion, made its own findings of fact and conclusions of law, and rendered a judgment decreeing plaintiff to be the owner of the premises and that plaintiff recover possession of the same without damages. From this judgment defendant appeals upon the sole ground that the verdict, in the absence of an order granting a new trial made in response to a motion therefor by the party aggrieved, was conclusive upon the court and, therefore, that the court was without authority to grant a judgment for plaintiff.
[1] The action is a statutory proceeding authorized by section
[4] It has been held in this state that, where a party is entitled to a jury as a matter of right, the court is without authority to enter a judgment contrary to the verdict and that the determination of a jury is conclusive unless set aside upon the granting of a motion for a new trial or unless the general verdict is inconsistent with special findings of fact made by the jury. (Montgomery v. Sayre,
In the instant case, however, the judgment recites that the verdict was vacated "upon the ground that the evidence was conclusive that title and right of possession is, and at all times mentioned in the pleadings has been, in the plaintiff, and that there is no evidence to support the verdict." Plaintiff therefore raises the point that, since there was no evidence to support the verdict, the question as to which party must prevail was a question of law for the court to determine and not one of fact for the consideration of the jury. The appeal was taken upon the judgment-roll alone and, therefore, the record does not disclose the evidence, but we may, for present purposes, assume that there was no substantial conflict in the evidence. [5] Where there is an absence of conflict, the question of right of recovery is one of law, to be passed upon by the court only (Herbert v. Southern Pac. Co.,
Even under the English common law there were only two well-recognized instances in which the verdict could be disregarded and the case disposed of without a new trial. "One [motion for judgment non obstante veredicto] was where the defendant's plea confessed the plaintiff's cause of action and set up matter in avoidance which, even if true, was insufficient in law to constitute a bar or defense; and the other [motion in arrest of judgment] was where the plaintiff's pleading, even if its allegations were true, disclosed no right of recovery." (Slocum v. New York Life Ins. Co.,
Section 4 1/2 of article
The judgment is reversed, with directions to the trial court to vacate the order setting aside the verdict, to restore and re-enter the verdict, and to enter judgment in conformity with the verdict as thus restored and re-entered, and to order restitution to appellant of the real property involved in this case. For all purposes of new trial and appeal, the verdict so restored and entered shall be deemed to have been returned on the date of its re-entry.
Lawlor, J., Waste, J., Wilbur, J., Shurtleff, J., Sloane, J., and Shaw, C. J., concurred.