*1 if Ergo, jury peers of their should decide people treat like this in the

a bank can get away

State of Dakota and South

it.

KOHLMAN, BIERSCHBACH &

ANDERSON, Partnership, Appellee,

Plaintiff and VEIT, Administrator,

Roy Alvin Veit Veit, Individually busi- Sons, Defendants, Veit &

ness as Appellant.

No.

Supreme Court of South Dakota. 12,1987.

Rehearing Aug. Denied Bormann,

Clark J. Bormann of Buckmei- Mobridge, Bormann, er for plaintiff & appellee. Slocum, Mobridge, R.

Robert ant and MORGAN, Justice. brought

Plaintiffs this action to recover bookkeeping preparation and tax servic allegedly provided es defendants. At trial none made a motion returning jury a verdict for defenda After the nts.* returned its verdict * Harold, Greg, and were all other counsel at trial. The partic- Alvin Veit named extent jointly ipation defendants attorney representing filed answer. other defendants at trial all three them eventual- clear. ly represented withdrew and

standing the verdict. Plaintiffs did later ten days Not than after of notice entry judgment, of Only party for a who has make a new trial. one a verdict serve may moved appeals for and a motion to have the verdict judgment notwithstanding the verdict. file any judgment and entered thereon set We reverse. judgment aside and to have entered in $6,972 due Plaintiffs claimed was them a accordance with his motion di- provided accounting services Harold verdict; rected ... A motion for a new sons, Greg Alvin, Veit and his who may motion, joined trial be or a partner- a allegedly business as may prayed for in new the alter- Sons. ship known as Veit & In their an- native. If a verdict was returned the complaint swer .the defendants denied may judgment allow the to stand $6,972; they sum owed the of defendants may reopen judgment either owing $2,000. At trial Alvin’s entry order a new direct the of attorney argued if they that judgment requested as if the verdict had directed, should return a verdict for [emphasis been added] be no more The jury should than Compare, Federal Rules Civil Proce- instructed, objection, was also without that dure, 50(b). owing $2,000. defendants admitted The We have commented the necessi trial court’s instructions did not direct a ty of a motion for directed verdict before amount, verdict on the admitted however. party may make a motion for a dispute The factual centered around “A judgment notwithstanding partnership whether a existed between the the verdict can only be considered when the moving party requested at the defendants and whether were liable a di rected verdict and thus partners the motion in effect plaintiffs provid- for the services brings before the trial review a performed bookkeeping Plaintiff ed. ser- grounds urged second time prepared vices all the defendants and of the motion for directed verdict.” Par partnership some tax returns. ham Rapids Township, 281, v. Dell 80 S.D. Although defendants no written 284, 548, (1963); 122 N.W.2d 550-551 see partnership agreement, they shared the use Fajardo Cammack, of machinery farming in their and livestock (S.D.1982). In Fajardo, Parham and how operations. portion Alvin also received a ever, motions for directed verdicts were proceeds by sale received Harold for made to the motions for j.n.o.v.s. hogs by owned Harold and cared for party Where a completely has failed to Although Alvin. were au- first make a motion for a directed verdict thorized to draw checks on their father’s the courts firmly “The rule is business, account for his he had not autho- entrenched who have person- them rized to write checks for their moved for a directed may seek the separate al use. Other bank accounts were benefit n.o.v.” Oliveras v. kept by boys. boys The did not share Export Dines, Inc., American Isbrandtsen proceeds in some (2d Cir.1970); their father received White, government program tax refund and a Hubbard v. 755 F.2d 692 1985); see payment. generally, 5A J. Moore and J. Lucas, Moore’s Federal Practice 50.08 (2d 1986); Wright ed. 9 C. and A. I Procedure Alvin contends that the trial court erro- (1971). purpose The requiring neously granted requisite motion for directed verdict at the ing the (j.n.o.v.) plaintiff’s close of give notice failed to make motions for plaintiff court and to the of deficien a directed verdict or The new trial. rele- proof cies in the plaintiff allow the 15-6-50(b), vant pro- statute is SDCL which cure them. making trap This avoids of a in part: vides later motion at the all close of the evidence long after close of all too to cure the de- This was when it would be late Judgment fect. N.O.V. and even after the case had Preservation been 50(b): jury. Di- The latest Buie Renewal submitted to Motion Under Motion, timely L.Rev. 70 Iowa could have rected Verdict made (1984). simply or renewed a directed verdict attempt another to avoid technical but is just the case had been submitted to before trial by ambush. See Sims’ Crane Service Consequently, attor- *3 Products, 1553 F.2d v. 800 Ideal Steel ney seriously cannot claim that the trial (11th Cir.1986). stage assessment of case at this court’s the any of the trial had affect on his failure to make the failing The effect to prerequisite make the motion. Under prerequisite motion these circumstances deprives power trial court to the of the having cannot be excused failed to j.n.o.v. grant Myers motion for See prerequisite make the directed verdict mo- Market, F.2d 555 Livestock Norfolk tion. (8th Cir.1982); Starling Ins. v. Gulf Life Cir.1967). Co., (5th fn. II satisfied, a prerequisite “Where Alvin’s second contention is that the evi- question sufficiency the of the party cannot support jury’s dence was sufficient to the either before the evidence [trial court] the verdict and that trial court should not through a motion j.n.o.v. have the As we have al- Myers, standing appeal.” the verdict ready plaintiffs’ failure to make the supra 558. In this case the trial court at prerequisite motion for a directed verdict grant j.n.o.v. had to in the power no deprived power the trial court for a absence of the j.n.o.v. consider motion for Both any during at the directed verdict present questions of of these motions the trial. sufficiency the noncom courts excused Some Compare Adams, jury verdict. Pearson v. pliance prereq with the for a (S.D.1979)(directed 279 N.W.2d 674 uisite motion for directed verdict. See required to issue of preserve the therein, Myers, supra, and cases cited review) the sufficiency of evidence for 558; 5A Moore’s Practice Dakota, Sabag v. Continental South 50.08, attorney rec p. 50-73. Plaintiffs’ (S.D.1985) (motion j.n.o.v. N.W.2d 349 ognizes that he should a motion have made grounds to the asserted in relates back verdict, argues directed but verdict); directed see generally, motion for permitted the exception should be because 50.07(2). 5A Moore’s Federal indicated that Thus, the trial court could not con- entitled to verdict. would not be a directed sufficiency of the evidence on the sider the Thus, argues, it he would have been place, in the first find for him to a motion. futile act make such unnecessary issue of to consider the making Courts have excused disposing sufficiency of 50(b) renewing necessary motions appeal. where the trial court has indicated its disposition submit the case to OTHER MATTERS McAn, Bayamon See Thom v. Mi Inc. argues randa, (1st Cir.1969) (failure 409 F.2d gave erroneously particular instruc- motion) renew Pitts and failed to admit certain evidence. tion burgh-Des Moines Steel v. Brookhaven arguments unaccompa- these are Because Co., Manor Water F.2d 572 nied citations authorities is- 1976). case, however, In this not sues are waived and we will consider expression court’s oral of its view Smith, 401 E.g., Estate them. evidence was made while the court (S.D.1987). discussing apparently counsel proper response inquiries to two The trial court's had in course of the verdict is and the case is their deliberations. reversed remanded with directions to reinstate the

jury's verdict.

HENDERSON, J., FOSHEIM, J.,

Retired concur.

WUEST, C.J., part concurs in part.

dissents

SABERS, J., dissents.

MILLER, J., having not been a

member the court at the time this court,

action was submitted did participate.

WUEST, (concurring Chief Justice

part, dissenting part). except

I concur we should remand direct- the trial court to enter

$2,000.00 since with interest the defendants $2,000.00. owed

SABERS, (dissenting). Justice

I dissent from the instructions on re- only.

mand parties, In fairness to all

should remand for a judg- new trial

ment $2,000, the amount of interest. This

with would accordance plead- defendant’s admissions in

ings, argument, and in the court’s

instructions that he owed

Stevan W. ANDREWS and Lorraine

Roller, Appellees, Plaintiffs and REYNOLDS, individually

Michael J. Reynolds Agri-Busi

as an officer of ness, Inc., formerly Agri- North Central Bradley of Heidepriem G. Zell & Wid- Inc., Business, Appel- mayer, appellees. lant. Coester, Milbank, William E. No. 15442. ant Supreme Court of South Dakota. HENDERSON, Justice.

Argued March Decided ACTION/PROCEDURAL

BACKGROUND appeal This arises from an action of Entry Forcible and Detainer which was