North Dakota Supreme Court, 1930

Hansen v. Northern Pacific Railway Co.

North Dakota Supreme Court · Decided December 23, 1930 · Birdzell, Burke, Nuessle, Burr, Christianson

233 N.W. 848; 60 N.D. 254; 1930 N.D. LEXIS 230 (North Western Reporter)

Counsel

P.W. Lanier, for appellant. A motion for judgment notwithstanding the verdict must be based upon settled statement of the case at the time the trial court acted upon the motion. 7 Bancroft's Code Practice, § 6145; Barcus v. Prokop, 29 S.D. 39 , 135 N.W. 756. The appealing party must present to the supreme court the evidence and record offered in support of the motion in the record, and no other record is required of the appealing party. Jordan v. Johnson, 76 Neb. 16 , 106 N.W. 999. It is necessary to show affirmatively that all of the evidence so presented and considered is included. 8 Bancroft's Code Practice, § 6671. The record must effectively show that error was committed and that the plaintiff in error was entitled as a matter of law to a different judgment or order from that complained of. Howlett v. Bank, 48 N.D. 933 , 188 N.W. 172. Conmy, Young Conmy, for respondents. "Under § 7044, Revised Codes of 1905, this court is expressly authorized, in the cases enumerated therein, to direct judgment non obstante veredicto notwithstanding the prior entry of judgment in the trial court." Schumacher v. Great Northern R. Co. 23 N.D. 231 , 136 N.W. 85.

Opinion of the Court

*255 Birdzell, J.

The plaintiff brought action against the Northern Pacific Railway Company as initial carrier and a number of other railroad companies as connecting carriers to recover damages alleged to have been sustained as a passenger while on the lines of the connecting carriers. For lack of proper service the action as against the connecting carriers was dismissed. .It proceeded to trial against the Northern Pacific Railway Company alone and at the trial a verdict was rendered in favor of the plaintiff, upon which judgment was promptly entered. Thereafter the defendant moved for judgment notwithstanding the verdict, which motion was based upon a motion for directed verdict made at the close of the trial and all the records and files in the action, but not upon a settled statement of the case. Schumacher v. Great Northern R. Co. 23 N. D. 231, 136 N. W. 85; Kanable v. Great Northern R. Co. 45 N. D. 619, 178 N. W. 999. This motion being granted, the plaintiff appeals. The notice of appeal reads:

“Please'Take Notice: That the plaintiff herein appeals to the Supreme Court of the State of North .Dakota, from the order of the Honorable Fred Jansonius, Judge of the District Court for the Fourth Judicial District in and for said state, dated March 25th, 1930, and filed and entered on or about the 28th day of March, 1930, said order setting aside judgment rendered in favor of plaintiff and dismissing said action with prejudice; this appeal is for the purpose of having the supreme court review the action of the trial court, and a hearing-in the supreme court is demanded upon said motion to the end that the action of the trial court be reversed, and the judgment in favor of plaintiff rendered in the district court reinstated.”

The original record on appeal did not contain the order, but on suggestion of' this court the order appealed from was later certified and made a part of the record. The record contains no judgment entered pursuant to the order. The appeal must necessarily be considered as an appeal from the order for judgment. It has been repeatedly held that such an order does not fall within any classification under § 7841 of the Compiled Laws of 1913, which specifies what orders are reviewable in this court. Dibble v. Hanson, 17 N. D. 21, 114 N. W. 371, 16 Ann. Gas. 1210; Malherek v. Fargo, 49 N. D. 123, 190 N. W. *256 176; Grain Growers Grain Co. v. Michigan, 52 N. D. 785, 204 N. W. 838.

The order appealed from not being an appealable order, the appeal must be dismissed. It is so ordered.

Burke, Oh. J., and Nuessle, Burr, and Christianson, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.