This is а law action in which the trial court directed a verdict for defendant at the close of plaintiff’s evidence and plaintiff has attempted to appeal as a matter of right pursuant to rule 331(a), Rules of Civil Prоcedure. The record on appeal shows defendant’s motion to direct was sustained and also shows the jury’s verdict at the direction of the court. The record makes no reference to the entry of any judgment.
In the belief there may have been a judgment which was inadvertently omitted from the record we requested the clerk of the trial court, pursuant to rule 341(b), to certify and transmit to us the final judgment. The clerk advises us that final judgmеnt has not been entered.
So far as material here, rule 331(a) provides, “All final judgments and decisions of cоurts of record * * * may be appealed * * Rule 331(b) states that no interlocutory ruling or decision may be aрpealed until after the final judgment or order except, pursuant to rule 332, upon permission granted by this cоurt or a justice thereof. No attempt was made here to obtain such permission.
If the ruling on the motion to direct or the verdict pursuant thereto is not a final judgment or decision plaintiff was not entitled to appeal under rule 331(a). We have held several times that we have no jurisdiction to entertain an appeal where no final judgment was entered and no permission was granted to appeal from the ruling as an intеrlocutory one. Hubbard v. Marsh,
Defendant (appellee) has not moved to dismiss the appeal or оtherwise urged the lack of our jurisdiction. However,
jurisdiction cannot be conferred even by consent, muсh less by silence of an appellee. It is not only our right but our duty to refuse, oh our own motion, to entertain аn appeal not authorized by statute and we have frequently so held. Hubbard v. Marsh, supra, and citations; Statе ex rel. McPherson v. Rakey,
A final judgment or decision is one that finally adjudicates the rights of the parties. It must put it bеyond the power of the court which made it to place the parties in their original condition or, аs frequently said, put the case out of court. It is a determination which may be enforced by execution оr in some other appropriate manner. In re Estate of Swanson,
An order sustaining a motion to direct оr the verdict pursuant thereto is not a final judgment or decision from which an appeal will lie as a mattеr of right. Scott v. Manley, supra,
30 Am. Jur., Judgments, section 7, states, “A judgment is distinct * * * from thе verdict * * *.” In 49 C. J. S., Judgments, section 4, it is said: “A verdict is not a judgment, but only the basis for a judgment, which may, or may not, be entered on it.” And from 4 C. J. S., Appeal and Error, section 139, “Unless expressly allowed by statute, an appeal does not lie frоm an order directing * * * a verdict.” Section 153b, id., states: “Unless allowed by express statutory provision * * * appeal will not lie from the verdict of a jury without an entry of judgment thereon * * *.”
In Cook v. City of Des Moines,
Before the adoptiоn of the Rules of Civil Procedure, section 12823(4), Code, 1939, provided that an appeal might be taken as a mаtter of right from “An intermediate order involving the merits or materially affecting the final decision.” We held in some сases that an order directing a verdict was such an intermediate order. Kayser v. Occidental Life Ins. Co.,
The former Code section 12823 was superseded by rules 331(b) and 332(a) so that appeals from intermediate or interlocutory orders may no longer be taken as a matter of right. Phillips v. Catterson,
The failure to enter judgment was the clerk’s failure. Rule 223 provides that “the clerk must forthwith enter judgment upon a verdict when filed, unless it is special, or the court has ordered the ease reserved for future argument or consideration.” However, attorneys should see that final judgment is entered in all cases in which they undertake to appeal as a matter of right under rule 331(a). It seems that such a judgment entry may be made nunc pro tunc in the trial court. 49 C. J. S., Judgments, section 118a.
The writer would dismiss the appeal herein by reason of lack of our jurisdiction to entertain it. However, the other members of the court think the submission