Johns v. Ruff

Morgan, J. The complaint in this action sets forth a cause of action for services rendered the defendant’s daughter by the plaintiff as a physician and surgeon at defendant’s special instance and request. The answer admits the rendering of the services, but denies specially that such services were at defendant’s special instance and request; and further alleges that such services were performed as an assistant to one Dr. Barr, and that said Barr agreed to pay said assistant out of the sum of $40, the agreed sum to be paid him for performing an operation on his infant daughter; and that the defendant never agreed to pay said'plaintiff nor in any manner employed him. The defendant testified in support of his answer, and his testimony shows that the plaintiff was employed as an assistant at .the sug [78] .gestión of Dr. Barr of the necessity of employing him as an assistant. He admitted that he was aware that the defendant was to assist in said operation, but denies that he agreed in any manner to pay him or that he employed him, and says it was agreed that said Dr. Barr was to pay said plaintiff. The defendant was not present at the operation. He had no conversation whatever with the plaintiff until after the services were performed. There was a verdict for the defendant in district court. That court ordered judgment for the plaintiff for $15, the undisputed value of his services, notwithstanding the verdict, and the defendant appeals from that judgment. The plaintiff moves to dismiss the appeal and for an affirmance •of the judgment, upon the grounds: “(1) That appellant’s brief contains no true and concise statement of the facts material to the points of law to be argued with reference to pages or folios of the abstract; (2) that appellant’s brief contains no assignment of error; (3) that the statement of the case as settled contains no specification of errors.” We do not find that the record sustains the last contention. The statement of the case was amended in due time on notice, and a specification of errors incorporated therein by an order •of the court. The brief contains no assignments specifically denominated as such. It does, however, point out the two grounds on which reliance is placed for a reversal of the judgment appealed from, and this is done in the following words: “So that from defendant’s view there are practically two propositions presented by this appeal, viz.: Did the district court err in granting plaintiff’s motion for judgment notwithstanding the verdict, and in denying defendant’s of February 24 to set aside the ordier of January 23, 1902?” These two questions are the only ones argued in the brief, and the plaintiff has argued the correctness of these two rulings only in his brief. Although these matters are not properly assigned as errors, and the brief does not refer to the pages or folios of the abstract, as required by rule 14 (74 N. W. x), still the total absence of these requirements is not ground for the dismissal of the appeal.-The appeal to this court was properly perfected, and cannot be dismissed for failure to comply with the rules of court relating to matters required to bring the case on for hearing and argument. The motion to dismiss the appeal is therefore •denied. If the matter had been brought before us on a motion to strike out the briefs for the reasons alleged, we would undoubtedly have granted the motion, although an amendment might have been [79] permitted upon terms. The record in this case is very brief, and the irregularity is not such as to warrant us in disregarding the errors assigned without a proper motion. The rule requires no stated form in making assignments. We therefore hold that there is not a total absence of assignments of error in the brief. Strict compliance with the rules is not always exacted, as has been held in the following cases: O’Brien v. Miller, 4 N. D. 308, 60 N. W. 841; Vidger v. Nolin, 10 N. D. 353, 87 N. W. 593. After the verdict of the jury was recorded on the minutes of the court, the plaintiff made a motion for judgment notwithstanding the verdict, upon these grounds: "First, that such verdict is not supported by any evidence introduced on the trial in said action; second, that said verdict was rendered by said jury in utter disregard of the evidence introduced upon the trial of said action; third, that said jury either disregarded or did not understand the charge of the court as to the law applicable to the facts appearing in evidence upon the trial of said action before the jury.” This motion was granted, and in the order granting it the following language is found: "And it now appearing to the court that there was no evidence offered by' either of the parties to said action to authorize or support the finding of th(e jury in favor of the defendant and against the plaintiff, and it appearing to the court that said jury either misunderstood or disregarded the charge of the court as to the law applicable to the facts in the case, and it appearing to the court from such evidence that said verdict is erroneous and against law, and that the plaintiff is entitled to judgment upon all the evidence introduced upon the trial.” It is conceded that the plaintiff did not move for a directed verdict in his favor during the trial. The practice relating to motions for judgment notwithstanding the verdict is prescribed by chapter 63, p. 74, Laws 1901, which is as follows: “In all cases where, at the close of the testimony in the case tried, a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion was denied, the trial court, on motion made that judgment be entered notwithstanding the verdict * * * shall order judgment to be entered,” etc. It is apparent from the reading of this law that the making and denying of a motion for a directed verdict must precede any motion for judgment notwithstanding the verdict on grounds relating, to lack of evi- • dence. Such a motion for a directed verdict is a condition precedent to ordering judgment notwithstanding the verdict upon grounds [80] pertaining to the evidence. The plaintiff, not having followed the preliminary requirement of the statute that a directed verdict must be asked for before a motion for judgment notwithstanding the verdict, can fc¡e granted, was not entitled to the judgment rendered in his favor on the grounds set forth in his motion. Hemstead v. Hall, 64 Minn. 136, 66 N. W. 366; Sayer v. Harris (Minn.) 87 N. W. 617; Crane v. Knauf, 65 Minn. 447, 68 N. W. 79. (95 N. W. Rep. 440.) It is contended, however, that plaintiff was and is entitled to the' judgment rendered in his favor under the common-law practice, for the reason that defendant’s answer failed to allege a good defense. Whether the answer did state a good defense we are not called upon to determine. This contention, so far as this case is concerned, is. disposed of by the fact that no such motion was made. The defendant was not apprised of any such contention until raised in respondent’s brief in this court. Defendant was called upon in the court below to meet the single proposition advanced that the evidence did not sustain the verdict, and he has not attempted to sustain the other contention on which respondent seeks to uphold the judgment in this court. Having specifically pointed out the ground of his motion in the court below, the plaintiff will not be permitted to urge a different ground in this court, not at all connected with or included in the motion made and granted in the district court. If the plaintiff had included in his motion the grounds now relied on to support the judgment, in addition to grounds stated in the motion, and the district court had granted the motion upon the latter ground, he would be in a position to urge in this court that the judgment .was proper on other grounds than the one relied on as sufficient by the district court. Under such a state of fact, the case of Tribune Co. v. Barnes, 7 N. D. 599, 75 N. W. 904, relied on by counsel, would be in point, but it is not in point on the facts of this case. The judgment is reversed, and the cause remanded, with directions to ttye district court to enter j udgment in favor of the defendant: upon the verdict of the jury. All concur.