Rambo v. Chicago Great Western Railroad Co.

1 Reported in 268 N.W. 199. The Supreme Court of the United States having reversed with costs (C. G. W. R. Co. v. Rambo, 297 U.S. 701, 56 S.Ct. 693,80 L. ed. 990), the judgment herein, affirmed by this court (Rambo v. C. G. W. R. Co. 195 Minn. 331, 263 N.W. 112), and having also ordered that the cause be remanded to this court for further proceedings not inconsistent with the opinion of said Supreme Court, plaintiff now moves this court to issue a remittitur to the district court of Dakota county directing a reversal of the judgment rendered by that court and ordering a new trial, and defendant moves this court to direct the court below to enter judgment in its favor. This court, upon due consideration, denies without prejudice defendant's motion, with leave, on the going down of the remittitur, to renew the same in the court below, if so advised. The rule to be observed in passing on such motion is clearly stated with pertinent citation of authorities in First Nat. Bank v. Fox, 191 Minn. 318, 254 N.W. 8. If such motion be not made within 30 days, or is denied after the going down of the remittitur, the court below is directed to reverse the judgment herein and grant a new trial. When a judgment is reversed for insufficiency of the evidence to support the verdict, as herein determined by the Supreme Court of the United States, a new trial follows as a matter of course unless the reversing tribunal otherwise directs. Yager v. Held,186 Minn. 71, 242 N.W. 469. Plaintiff also appeals from the clerk's taxation of the costs taxed in the Supreme Court of the United States. The clerk's taxation is hereby *Page 653 affirmed, it being in accordance with the mandate of said Supreme Court that defendant have execution from this court therefor. We conceive this conclusion is not opposed by State ex rel. Peery v. District Court, 139 Minn. 464, 166 N.W. 1080. ON MOTION FOR REMITTITUR WITHOUT PAYMENT OF JUDGMENT FOR COSTS PENDING NEW TRIAL. On September 18, 1936, the following opinion was filed:2 2 Reported in 268 N.W. 870.