Prairie Flour Mill Co. v. Farmers Elevator Co.

TAYLOR, J. The plaintiff, respondent, brought this action in conversion as assignee of a warehouse receipt issued by the defendant Ferdinand Rochdale Company to one Phoebe Snyder, and by her sold and assigned to RiggsMikkelson Grain Company, and alleged to have been by the latter, with all its right, title, claim and interest in said wheat, assigned to plaintiff. The complaint alleges that Farmers Elevator Company, a corporation, was created “for the purpose of reorganizing and taking over the assets of the Ferdinand Rochdale Company, and assuming its liabilities,” and that it “did take *232 over the assets and assume the liabilities of the Ferdinand Rochdale Company”; that the two warehouse companies and defendant Tarbet, as manager thereof, had converted the grain and refused to deliver it, and asked judgment for the grain or its highest market value. The surety companies were made defendants upon bonds issued by them for the respective parties. They each specifically denied all the allegations of the complaint. The defendants Farmers Elevator Company and G. "W. Tarbet admitted, by not denying the allegation, that this company did take over the assets and assume the liabilities of the Ferdinand Rochdale Company, but denied other material allegations of the complaint, including the assignment by Riggs-Mikkelson Grain Company to the plaintiff. Each and all of the defendants, as an affirmative defense, alleged that the Riggs-Mikkelson Grain Company was, at all times mentioned, and now is, a foreign corporation engaged in transacting and carrying on business in Idaho, contrary to, and without having complied with, the constitution and laws thereof; that the contract sued upon was made and to be performed in Idaho; that if any assignment was made by Riggs-Mikkelson Grain Company, it was made without payment of any valuable consideration, and for the purpose of avoiding the laws of the state relating to the maintenance of actions by foreign corporations. The defendants Farmers Elevator Company and G. "W. Tarbet alleged a further separate and affirmative defense, that the grain in controversy had been, by the Ferdinand Rochdale Company, in the manner therein alleged, sold to and shipped to and received by the Riggs-Mikkelson Grain Company. The jury rendered a verdict for the defendants. Plaintiff’s counsel immediately, without stating any grounds therefor, moved for a judgment notwithstanding the verdict; and the court, without stating any grounds except those recited in the judgment, immediately granted the motion, and made and entered a judgment in favor of the *233 plaintiff, which, after setting forth the verdict, recited, as its only ground for judgment non obstante, as follows: “Thereupon, Fred E. Butler, attorney for plaintiff, immediately moved for judgment non obstante veredicto, in accordance with the prayer of plaintiff’s complaint, and the proof adduced during the trial of said action; and, it appearing to the court that said verdict so rendered was contrary to the instructions given said jury, and the court being fully advised in the premises, granted said motion.” The appeal is from this judgment. Appellants assign as error that the court erred in entering judgment non obstante veredicto, and contend that a motion for, or entry of, judgment non obstante, is not recognized or permissible under our code practice, and in no event under the circumstances of this case. In Bow v. R. & N. Oil Gas Co., 43 Ida. 80, 251 Pac. 295, a motion for judgment for plaintiff notwithstanding the verdict for defendants, was made and denied. Plaintiff appealed. The original opinion directed a judgment for plaintiff against five of the defendants, and a new trial as to the remaining defendants. Upon rehearing, the opinion was modified to strike the order for judgment therefrom, and a new trial was granted as to all of the defendants. The propriety of the practice of entering a judgment notwithstanding the verdict was not in issue, raised or discussed. In Zilka v. Graham, 26 Ida. 163, 141 Pac. 639, a motion was made by one of two defendants for judgment non obstante, and its denial claimed as error on appeal. This court simply ruled that, coming after the entry of judgment, the motion was too late. No point was made or decided as to the propriety of the practice. In Cady v. Keller, 28 Ida. 368, 154 Pac. 629, motion for judgment non obstante was denied. This court simply decided that an order denying such motion was not an appeal-able order, under C. S., see. 7149. It will thus be seen that no ease has heretofore been presented to this court in which a judgment non obstante has *234 been rendered, nor in which the propriety of the practice of entering such a judgment, or its justification under our practice, has been argued or decided as a point in issue. In jurisdictions having code provisions so similar to our own as to appear to give no reason for distinction, the common-law practice of entry of judgments non obstante veredicto, has been denied. (Kirk v. Salt Lake City, 32 Utah, 143, 89 Pac. 458, 12 L. R. A., N. S., 1021 ; Southern Pacific L. Co. v. Dickerson, 188 Cal. 113, 204 Pac. 576; Best v. Beaudry, 62 Mont. 485, 205 Pac. 239.) Since the decision in Southern Pacific L. Co. v. Dickerson, the code of California has been amended. (Cal. Stats. 1923, p. 749, sec. 1.) We have, as in Utah, the same provisions which require that a judgment must be based upon something recognized by statute. Our provisions are almost identical as to grounds of dismissal or nonsuit (C. S., sec. 6830); for judgment on the merits in all other cases (C. S., sec. 6831) ; and for a court’s decision in writing (C. S., sec. 6866) and findings of fact (C. S'., see. 6867); judgment in conformity with a verdict (C. S., sec. 6864); and as to general and special verdicts (C. S., secs. 6860, 6861); and for judgment on waiver of findings by default (C. S., sec. 6868) or consent (C. S., sec. 7302). The reasoning of Southern Pacific L. Co. v. Dickerson, supra, based upon California statutes similar to ours, is likewise well founded. Those decisions and the construction placed upon similar code provisions are persuasive and sufficient to impel a decision that a judgment cannot be based upon a motion for judgment non obstante, and that when a trial has been had and verdict rendered, the court can relieve one from the verdict only by setting it aside on motion, or upon its own motion, and granting a new trial, which power, stated in the conjunctive (C. S., secs. 6888, 6893), necessarily implies that a new trial follows, and excludes any other power to vacate or in effect set aside a verdict by entering judgment contrary thereto. *235 It occurs, however, that further provisions in our code, at variance with the practice and procedure at common law, make it still more definite and certain that a motion for judgment non obstante mredicto is precluded thereby. We cannot be guided by the consideration and propriety of a judgment non obstante, and the circumstances in which it may be entered in those jurisdictions allowing it, by any statutory provisions of such jurisdictions, but must deal with and arrive at our conclusions upon the practice as, and only as, permissible under the common-law practice, the continuation of which, if any, under C. S., see. 9460, furnishes the only justification for the practice. At common law, a judgment non obstante was only granted upon the record of the pleadings, and did not rest upon the sufficiency or insufficiency of evidence upon either side, was only granted on behalf of the plaintiff, and in a case where the defendant’s answer admitted all the material allegations of the plaintiff’s complaint, but pleaded new matter by way of defense or confession and avoidance. (Slocum v. New York Life Ins. Co., 228 U. S. 364, Ann. Cas. 1914D, 1029, 33 Sup. Ct. 523, 57 L. ed. 879.) After a trial and verdict in favor of the defendant upon such new matter, it was within the province of the court to entertain a motion for a judgment notwithstanding the verdict, which was based upon a question of law (Gwynne v. Burnell, 6 Bing. (N. C.) 453, 37 E. C. L. R. 713., 133 Eng. Reprint, 175), not upon the evidence, that, admitting the matter pleaded by the defendant and a verdict in his behalf upon that question, such new matter in the answer was wholly insufficient to constitute a defense, and the pleading of it to which the motion went was insufficient for such purpose, and thus, notwithstanding a verdict in his favor upon that matter, the judgment should be for the plaintiff. At the common law, one whose demurrer was overruled had to stand upon it or withdraw it before he could answer; in other words, he could not both demur and answer. (2 Hughes on Procedure, p. 558.) Also, *236 new matter in an answer required further answer, a reply by plaintiff. Thus, a plaintiff who may have demurred to new matter in an answer must, in order to reply, withdraw or waive his demurrer. The practice gave him still another opportunity to raise the sufficiency of the defendant’s plea of new matter, by motion for judgment non obstante. Its counterpart on behalf of the defendant was a motion in arrest of judgment. Such practice contemplated that the court could, upon such motion, again inquire into the sufficiency of the allegations of new matter in the defendant’s answer. Our practice and code provisions are different. Here, one may demur and answer at the same time, or he may demur, and, if his demurrer be overruled, try out the case, and still save and raise on appeal any error in overruling the demurrer. Likewise, a plaintiff may demur to new matter in an answer, and, if the demurrer be overruled, the new matter is deemed denied, and the plaintiff, in case of a verdict for the defendant based upon this new matter, may test the sufficiency of defendant’s allegations of new matter on appeal, assigning error in the overruling of his demurrer thereto. A motion for judgment non obstante veredicto is the equivalent of a motion for nonsuit as to defendant’s affirmative matter, made after verdict, upon the ground that defendant’s allegations in his answer are insufficient to constitute a defense. But, as a motion for nonsuit cannot be based upon the insufficiency of plaintiff’s complaint (Mole v. Payne, 39 Ida. 247, 227 Pac. 23), by the same token neither should a motion for a directed verdict be permitted to be based upon the insufficiency of the allegations of any matter in the answer. This practice is wholly foreign to, and, if not in explicit terms at least very apparently by implication, denied by, our code. C. S., sec. 9460, continues in effect only those rules of the common law not repugnant to or inconsistent with the provisions of the code. If recognition of survival of the common-law practice as to judgments non obstante would carry with it recogni *237 tion of motions in arrest of judgment, and we see no reason why it should not, it is significant that the legislature has made specific provision for motions in arrest of judgment in criminal cases (C. S., secs. 9019, 9254), and none in civil cases, but seems to have provided to the contrary. We cannot escape the conclusion that, by the adoption of the code and its many provisions inconsistent with the practice of moving for a judgment non obstante, such practice is not proper or permissible thereunder. Respondent contends that, notwithstanding the entry of judgment may have been irregular, there was no possible phase of the evidence upon which the defendants might recover a verdict, that a directed verdict would have been proper, and thus no possible injury could have been inflicted upon the defendants; and for this reason the judgment should be affirmed as error without prejudice. It has been held that, upon appeal from a judgment non obstante erroneously entered, it is neither necessary nor proper to consider other assignments of error. (Best v. Beaudry, supra.) However, a slight consideration of them and of the evidence will demonstrate that the judgment cannot be affirmed as error without prejudice. The court instructed the jury in effect that they might render a verdict for the defendants, and even submitted to them with the instructions a form therefor. (Eades v. Trowbridge, 143 Cal. 25, 76 Pac. 714.) It will readily be seen that the judgment of the court was based in effect upon its view of the evidence. It is in effect a finding adverse to defendants upon all the material issues alleged in the complaint and denied in the answer, and the affirmative matters set up as a defense, upon many of which there was material conflict in the evidence sufficient to entitle the parties to a jury trial. It would be needless to point out many of these instances. The evidence that Farmers Elevator Company assumed the assets and liabilities of Ferdinand Rochdale Company was open to question as to its sufficiency as a mere conclusion of a witness, and as to the extent of such assump *238 tion. The Farmers Elevator Company did not apparently receive the wheat, and its liability, if any, must rest upon some assumption thereof. (27 R. C. L., p. 954, sec. 8.) Depending upon the view taken of it, even the evidence of M. B. Mikkelson, on behalf of plaintiff, as to his dealings with Riggs-Mikkelson Grain Company, a corporation, and his dealings as an individual under that name, together with other evidence of the former shipment of the grain to the same named company, presented a conflict as to the identity of the corporation or firm at times vital to the issues as to whether it was unlawfully doing business in Idaho, had itself received the converted grain, or had assigned the claim; or, if liable itself for the conversion (38 Cyc., p. 2024), it or its assignee could, as the hand that was to receive as well as to pay, maintain an action for conversion. (38 Cyc., pp. 2042, 2079; Duncan v. Cooper (Sask.), 69 Dom. Law Rep. 435; Gregg v. Wells, 10 Ad. & E. 90, 113 Eng. Reprint, 35; 40 C. J., p. 649, “Merger”; 25 C. J., p. 230, “Extinguishment.”) This brief summary, not all-inclusive, of the issues and conflict of evidence, negatives the claim that a verdict could have been properly directed; and thus removes the case from the rule of those decisions that the error was without prejudice. The court erred in rendering judgment for the plaintiff. The judgment is reversed and the cause remanded, with instructions to enter judgment on the verdict for defendants. Costs to appellants. Wm. E. Lee, C. J., and Givens, J., concur.