On appeal from the Essex County Circuit Court.
For the plaintiff-appellant, Charles S. Smith.
For the defendant-respondent, Kanter & Kanter (Elias A. Kanter, of counsel).
The opinion of the court was delivered by
CASE, J. This is an appeal by the plaintiff from a judgment of the Essex County Circuit Court entered in favor of the defendant, notwithstanding the verdict of the jury had been rendered in favor of the plaintiff.
The self-styled "rule for judgment" is really not that but is a disposition of a reserved point. It recites that before submission of the cause to the jury the defendant moved the direction of a verdict in his favor and that the court reserved the disposition of the motion. The directing portion of the rule follows:
"It is thereupon, on this 22d day of January, A.D. 1931, ordered that the motion to direct a verdict in favor of the
defendant so reserved, be granted, notwithstanding the verdict of the jury, and that the verdict by direction of the court be, and hereby is, entered in favor of the defendant, William D. Decker, and against the plaintiff, J. Thaddeus Rospond, with costs to be taxed in favor of the said defendant, and against the said plaintiff."
The rule is a direction of verdict by the court and not a rule for judgment non obstante veredicto, in the technical common law use of that term.
The rule was issued by the court after the jury, conformably to the latitude allowed it in the charge, had rendered a verdict in favor of the plaintiff and had, presumably, been dismissed. The situation arose in this wise: At the close of the testimony defendant, specifying five grounds, moved for a directed jury verdict. The court at once denied the motion except as to the fifth ground which was taken under advisement. The court proceeded to charge the jury and, inter alia, instructed the jury to determine as a factual question whether the plaintiff or his predecessor in title had exercised due diligence in holding to liability the endorsers of a promissory note; and the negative of this proposition was the content of the fifth ground. The jury retired, deliberated and, after court adjournment but in apparent accord with section 160 of the Practice act (3 Comp. Stat., p. 4103), returned a verdict for the plaintiff. The jury seems then to have been discharged as it appears no further in the case. The next day the court, in the presence of counsel, referred to the reserved motion. Counsel for the defendant moved "that a verdict be entered in favor of the defendant non obstante veredicto." Counsel for plaintiff moved that the verdict be entered in favor of the plaintiff and agreed that argument be deferred to a later day. However, we do not find in this agreement to postpone the argument a waiver of right to except to the court's ruling, quoted above, which was made, after argument, a week later. Exception was duly taken.
Under the circumstances, a judgment non obstante veredicto, properly so termed, could not ...