84 Ill. App. 532 | Ill. App. Ct. | 1899
delivered the opinion of the court.
The motion by appellees, who were the defendants in the court below, for a judgment non obstante veredicto, was inapt. Such judgment can only be given for a plaintiff. The practice is to be availed of only when the plaintiff has established his case and the defendant has failed to plead any sufficient defense. 2 Tidd’s Practice, 920; 1 Chitty, 688; Stephen’s Pl. 98; 1 Black on Judg., Sec. 16; Freeman on Judg., Sec. 7; Hitchcock v. Haight, 2 Gil. 604; German Ins. Co. v. Frederick, 58 Fed. Rep. 144.
The only decision contra, which is cited, or that we can find, is Holland v. Kindregan, 155 Pa. St. 156, and if that decision is to be so regarded, it certainly stands against the weight of authorities and established practice. Decisions of Indiana and Iowa are based upon statutes.
It is true that in our practice a judgment for a defendant may rest upon a special finding by the jury, even though the general verdict be for the plaintiff. The statute, Section 58c of the Practice Act, provides that where the special finding of fact is inconsistent with the general verdict, the former shall control the latter, and the court may render judgment accordingly. Ebsery v. Chicago C. Ry. Co., 164 Ill. 518.
But the special finding, to thus support a judgment contrary to the general verdict, must be a finding of a controlling fact, and it must be wholly irreconcilable with the general verdict. Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132; Ebsery v. Chicago C. Ry. Co., supra.
If the motion here had been for a judgment upon the special findings, or either or any of them, and the judgment had been entered upon such motion, we would be obliged to hold that there was no one of the special findings which could support the judgment. We are unable to perceive that any fact is found by any of these special findings which is in the least inconsistent with the case alleged in the declaration or with the general verdict for the plaintiff. The motion, however, was not for a judgment upon special finding, but for a judgment non obstante veredicto.
The motion is in terms as follows:
“ And now come the defendants, by John A. Post and 0. W. Dynes, their attorneys, and move the court to set aside the general verdict of the jury rendered in this case, to wit, on or about the 9th day of November, A. D. 1898, and enter judgment of not guilty for the defendants herein, notwithstanding the said general verdict. And for grounds of said motion, the defendants show to the court here, the following, to wit: ”
Each of the points thereafter specified in the motion formulates an objection to the general verdict; and nowhere is it pointed out that any particular one of the special findings presents a controlling fact which would sustain a judgment for the defendants. In other words, the substance of the motion presents grounds for a new trial, if true, and not ground for a judgment for the defendants.
There is no need to discuss the evidence, as we have no occasion to consider a motion for new trial.
The judgment is reversed and the cause will be remanded, with directions to the Superior Court to entertain a motion for a new trial by defendants, or either of them, if one shall be made, and if such motion is not made, or is made and overruled, to enter judgment on the general verdict.
This practice was adopted in Quick v. I. & St. L. Ry. Co., 130 Ill. 334.
The judgment is reversed, and the cause is remanded with directions.
