Coughlin v. Ætna Life Insurance

OheistiaNSON, J. This is an action upon a life insurance policy. There was a trial to a jury, and a. verdict in favor of the plaintiff. Judgment was entered pursuant to the verdict on February 3, 1922, and no [956] tice of entry thereof served, February 4th, 1922. No appeal was taken from the judgment. On September 5th, 1922, defendant moved for judgment notwithstanding the verdict or for a new trial. IJpon the hearing of the motion, plaintiff appeared specially and filed written objections to the consideration thereof on the ground that more than six months had elapsed since the service of notice of entry of judgment; that as no appeal had been taken from the judgment the action was no longer pending, and the judgment final and no longer subject to review upon such motion. The trial court made an order denying defendant’s motion, and defendant has appealed. Questions analogous to the one presented here have been considered by this court in several cases. See Grove v. Morris, 31 N. D. 8, 151 N. W. 779; Higgins v. Rued, 30 N. D. 551, 153 N. W. 389; Garbush v. Firey, 33 N. D. 154, 156 N. W. 537; Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707; Gohl v. Bechtold, 37 N. D. 141, 163 N. W. 725; Bovey-Shute Lumber Co. v. Donahue, 43 N. D. 247, 175 N. W. 205. In Grove v. Morris, supra; Higgins v. Rued, 30 N. D. 551, 153 N. W. 389, and Garbush v. Firey, 33 N. D. 154, 156 N. W. 537, this court-held that when notice of motion for a new trial is served more than six months after the date of service of notice of entry of judgment, i. e., after the time for appeal from the judgment has expired, the district court is without authority to entertain such motion over the objection of the adverse party. In Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707, we held that where a motion for a new trial is duly noticed to be heard at a date prior to the expiration of time for appeal from the judgment, but continued by consent of the parties, and finally submitted and determined after the time for appeal from the judgment has expired, the final character of the judgment is suspended by the pending proceedings, and the court has jurisdiction to determine the motion for a new trial even though the time for appeal from the judgment has expired. In Gohl v. Bechtold, 37 N. D. 141, 163 N. W. 725, we held that the mere service within the six-month period of notice of a motion for a new trial noticed to be heard after the expiration of such period does not suspend the final character of the judgment so as to authorize the court to entertain such motion. In Bovey-Shute Lumber Co. v. Donahue, supra, we held that the [957] final character of the judgment is not suspended by an ex parte application for an extension of time in which to move for a new trial, and an ex parte order entered thereon. The soundness of the principles announced and the conclusions reached in these several cases is not questioned. Appellant, in effect, concedes that if no motion at all was made within the six-month period, the judgment became final and the court inhibited from entertaining a motion for a new trial or a motion in the alternative for judgment notwithstanding the verdict or for a new trial. Appellant, however, contends that here the motion was made within the six-month period and that the final character of the judgment was suspended by such pending motion. In other words, appellant contends that a situation 'exists which brings the case within the rule announced in Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707. This contention is predicated upon two propositions: (1) That under chapter 133, Laws 1921, a motion for a directed verdict is in effect held in abeyance until after the return of the verdict, and ipso facto suspends the final character of the judgment (within the rule in Skaar v. Eppeland, supra) until disposed of by ruling of the court, after the return of the verdict. (2) That in this ease there was a specific arrangement between the parties at the time the motion for a directed verdict was made that a motion for judgment notwithstanding the verdict would be made upon each and all of the grounds stated in the motion for a directed verdict; and that after the return of the verdict and the entry of the judgment the parties understood that the motion for a directed verdict should be treated as a motion for judgment notwithstanding the verdict, and that it was so treated by them. These propositions will be considered in the order stated. (1) Chapter 133, Laws 1921, reads as follows: “When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request, but upon a subsequent motion} by such moving party after verdict rendered in such action, that judgment be entered notwithstanding the verdict, [958] or if tbe jury bare failed to agree upon a verdict, for a directed verdict, tbe court shall grant tbe same if, upon tbe evidence as it stood at tbe time sucb motion to direct a verdict was made, tbe moving party was entitled to such directed verdict. An order for judgment notwithstanding the verdict may also bo made on a motion in tbe alternative form asking therefor, or if tbe same be denied, for a new trial. If tbe motion for judgment notwithstanding tbe verdict be denied, tbe supreme court, on appeal from tbe judgment, may order judgment to be entered, when it appears from tbe testimony that a verdict should have been so directed; and it may also so order on appeal from tbe whole order denying such motion when made in tbe alternative form whether a new trial was granted or denied by sucb order.” (Italics ours.) In our opinion the statute does not have tbe effect contended for by tbe appellant. On tbe contrary tbe language of tbe statute seems to negative tbe construction for which he contends. It will be noted that tbe statute specifically requires that a “subsequent motion,” i. e., a motion after return of tbe verdict, be made. It is only when sucb motion is made that tbe statute says, “the court shall grant tbe same if, upon tbe evidence as it stood at the time tbe motion to direct a verdict was made, tbe moving party was entitled to sucb directed verdict.” Tbe mere fact that a motion for a directed verdict is made in no manner suspends the final character of tbe judgment. If no proceedings are had after tbe return of tbe verdict looking toward having tbe correctness of tbe verdict reviewed, tbe judgment entered pursuant to tbe verdict has the same finality as it has in cases where a motion for a directed verdict is not made. (2) Upon tbe second proposition affidavits of counsel for the respective parties and certain correspondence which passed between them was submitted to tbe trial court. It was contended on tbe part of tbe defendant that it was understood between tbe parties that- the motion for a directed verdict should be deemed for all purposes an alternative motion for judgment notwithstanding tbe verdict or for a new trial. It was contended on tbe other band by counsel for tbe plaintiff that there was no sucb understanding; that the only understanding between counsel was to tbe effect that when appellant desired to make bis motion, plaintiff’s counsel would be willing to accommodate him by agreeing upon some convenient date for tbe submission of tbe motion, and that [959] tliis all pre-supposod that such motion would in fact be made and submitted in the manner and within the time prescribed by law. The trial court in a memorandum opinion said: “The correspondence which passed between counsel subsequent thereto (to the trial) and which is made a part of the affidavit of Aubrey Lawrence has been examined by the court and the view we take thereof is that the defendant was concerned chiefly with finding a suitable date to argue a motion for judgment notwithstanding the verdict and that the counsel for the plaintiff was willing to agree to take up the matter at any suitable time within the time granted for appeal. After the expiration of the six months plaintiff’s counsel considered the matter closed. Of course we do not speak authoritatively for either side. No motion was made in writing, nor any notice in writing served bringing the matter on for hearing within the six months.” We are inclined to agree with the conclusion which the trial court reached in consideration of the correspondence. As we construe ■ the record, there was no motion made in this case until after the time for appeal from the judgment had passed and the case presented falls squarely within the rule announced by this court in Gohl v. Bechtold, supra, and Bovey-Shute Lumber Co. v. Donahue, 43 N. D. 247, 175 N. W. 205, and the authorities cited therein. It follows that the trial court’s ruling in denying the motion for judgment notwithstanding the verdict or for a new trial was correct. The order appealed from is affirmed. BeoNsoN, Ch. J., and Bikdzell, Nuessle, and JoiiNsoN, JL, concur.