Thress v. Zemple

Bronson, .J. This is an appeal from a judgment rendered October 7, 1918, and from the order refusing to vacate the same. The action, originally commenced in March, 1914, was tried in December, 1915, before a jury, and, pursuant thereto, judgment was rendered for the defendant in December, 1916. Thereafter, in June, 1917, upon a motion made for judgment non obstante, or, in the alternative, for a new trial, the trial court granted a new trial. Thereupon, the defendant appealed from such order, and in the month of September, 1918, this court in its opinion (40 N. D. 510, 169 N. W. 79) held that the trial court should have directed a verdict for the plaintiff, or allowed the motion for judgment notwithstanding the verdict. In the latter part of such opinion it is stated: “Order affirmed and case remanded for proceedings in accordance with this decision.” After the remittitur was filed, the trial court, following this court’s-opinion and deeming that a new trial would not result otherwise than in plaintiff’s favor, ordered judgment in favor of the plaintiff. Judgment was so entered in October, 1918. In November, 1918, the defendant made a motion to vacate such judgment upon the ground that he was entitled to a new trial under the mandate of this court, and upon the further ground that, the defendant being in the active-military service of the United States at the time of the rendition of such judgment, the Moratorium Act (Sp. Laws 1918, chap. 10) applied. Accordingly, the defendant has again appealed to this court from the order refusing to vacate such judgment. The appellant contends that neither the.mandate nor the remittitur directed the trial court to enter such judgment, and that such court had no jurisdiction-to so’ do. That the effect of the trial court’s action is to grant to the-respondent a greater relief than he secured in the trial court upon a matter concerning which he did not appeal, and upon a subject-matter-that was not before this court for consideration. These contentions involve the construction to be placed upon the former decision of this602 court and the right of this court to direct, and the trial court to enter, a judgment non obstante, where an appeal has been taken only from an order granting a new trial. It is clear that this court determined in its opinion upon the former appeal (40 N. D. 510, 169 N. W. 79) that the plaintiff, as a matter of law upon the record, was entitled to a directed verdict or to judgment non obstante. If any lack of clarity exists as to the meaning of such decision, it is found only in the last paragraph thereof, which states that the order is affirmed and the case remanded for proceedings in accordance with the decision. If such last paragraph had stated in words, “it is therefore ordered that judgment be entered in the trial -court for the plaintiff in accordance with this decision,” there would be no difficulty whatsoever in apprehending exactly what this court intended to do. There can be little question, upon the plain language of the opinion, that it did so intend. Under § 7648, Comp. Laws 1913, this court is granted the specific power, upon an appeal from an order granting or denying a motion for a new trial in an action where a motion is made by either party at the close of the case to direct a verdict, to order and direct a judgment in favor of the party who was entitled to have such verdict -directed in his favor. See Ennis v. Retail Merchants Asso. Mut. F. Ins. Co. 33 N. D. 20, 36, 156 N. W. 234; Schumacher v. Great Northern R. Co. 23 N. D. 231, 136 N. W. 85. Such motion for a directed verdict was made in this case. Under § 7844, Comp. Laws 1913, this •court, upon an appeal from a judgment or order, may reverse, affirm, or modify the judgment or order, and in all cases this court shall remit its judgment or decision to the court from which the appeal was taken, to be enforced accordingly. The appellant, upon the former appeal, appealed from an order granting a new trial. He brought up for review before this court the entire record. He questioned the sufficiency of the evidence to warrant such order. He contended that no new trial should be granted. The trial court did grant a new trial upon the ground that evidence was - insufficient to warrant the verdict rendered. This court necessarily considered the sufficiency of such evidence which the trial court considered in connection with the motion for the new trial, involving therein also the motions made for a directed verdict and for judgment [603] non obstante. This court upon such former appeal did determine that as a matter of law, upon the record, no new trial should be granted, and that the motion for a directed verdict or for judgment non obstante, in favor of the plaintiff, should have been granted by- the trial court. The opinion of this court in the former case is not now in question. The appellant now contends for a new trial pursuant to that opinion. Plainly his contention must be denied. The court possessed the power to so order judgment for the respondent even though he contended simply for a new trial. Comp. Laws 1913, § *7643. It did, in fact, exercise such power, apparently deeming it to be a useless legal ceremony to remand this case for a new trial when such action woidd be futile and would simply serve to prolong litigation. The appellants further contend that under the Moratorium Act the trial court in any event should have vacated the judgment for the reason that at the time the defendant was engaged in the military service of the United States. Under chap. 10, N. D. Sp. Laws 1918 (the Moratorium Act), it is specifically provided, under § 1 thereof, that no further proceedings shall be taken in any action that was pending at the time the act took effect, in which any person who is in the active military service of the United States is a party, over the ohjection of such party, his attorney or any person interested in his behalf. Under § 3 thereof it is provided that any proceeding taken against any such person shall be vacated and declared void as a matter of course upon proper application to vacate the same. The respondent, in his brief, suggests to this court that if the trial court transgressed the terms of the act it was done unwittingly, and that proper safeguards have been ordered, in that the trial court has directed that no proceedings be had for the enforcement of the judgment until the further order of the court. In the record it appears that the defendant was inducted into the military service, in the month of February, 1918, and ever since that time, up to the 25th day of November, 1918, when the affidavit was made, has been in the active military service of the United States. The act is explicit and direct in its terms. It must be given effect in accordance with its express terms. In this action a judgment was likewise rendered against the garnishee. Apparently no showing was made to the trial court under the provisions of § 4 of the Moratorium Actr providing for the giving of a bond, and the taking of property when [604] the court should so order upon the grounds stated in said § 4. The trial court accordingly erred in not vacating the judgment pursuant to the terms of the Moratorium Act. It is therefore ordered that the order of the trial court be reversed and the judgment be vacated, and that no further proceedings be taken in such action during the time the United States is engaged in the present war, and for an additional period of one year, unless otherwise ordered by the trial court pursuant to the terms of such Moratorium Act. The appellant will recover the costs in this court of this appeal. Grace, J. I concur in the result.