Jach v. Edson

California Court of Appeal Oct 16, 1967 No. Civ. 8748Published

Before: Coughlin

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Holding. The court held that a trial court lacks authority to enter a partial judgment notwithstanding the verdict on liability while ordering a new trial on damages, as the statute requires a judgment notwithstanding the verdict to resolve all issues. Consequently, the order granting a new trial on damages alone was reversed and the case remanded for reconsideration of the motions.

Issues

Whether an order granting a judgment notwithstanding the verdict is appealable.
Whether a trial court has authority to enter a partial judgment notwithstanding the verdict on liability while ordering a new trial on damages.
Whether the trial court erred in its disposition of the motions for judgment notwithstanding the verdict and a new trial.

Disposition. Dismissed in part; reversed and remanded in part.

Quotations verified verbatim against the opinion

“An order granting a motion for judgment notwithstanding the verdict is nonappealable.”

“A trial court has no authority to enter multiple final judgments determining multiple issues between the same parties to an action.”

“The statute not only does not confer authority to direct a judgment notwithstanding the verdict as to one issue in the ease and grant a new trial as to another issue”

COUGHLIN, J.

Plaintiff was injured in a scuffle with defendant occurring in a high school gymnasium, and sought recovery of damages under a complaint in two counts; the first alleged defendant “so negligently squeezed, struck, grabbed and hit plaintiff so as to proximately cause plaintiff to sustain the hereinafter described injuries ’ ’; and the second alleged defendant “assaulted and battered plaintiff so as to proximately cause plaintiff to sustain” the aforesaid injuries. A jury trial resulted in a verdict for defendant and judgment accordingly. In due course plaintiff moved “for an Order for Judgment notwithstanding the verdict, and if the same be denied, for a new trial. ’’ The motion was made “upon the grounds of the insufficiency of the evidence to justify the verdict. ’ ’ The court made the following minute order: “Plaintiff’s Motion for Judgment Notwithstanding the Verdict is granted on the issue of liability, and Plaintiff’s Motion for New Trial is granted on the issue of damages, on the grounds of the insufficiency of the evidence to justify the verdict, as more fully set forth in the record. ’ ’ Thereafter, the court signed an ‘‘ order ’ ’, prepared by counsel for plaintiff, dated December 16, 1966, the pertinent parts of which are as follows :

“It Is Hereby Ordered That

“1.....

“2. Judgment notwithstanding the verdict as regards the issue of liability is hereby granted in favor of the plaintiff on the grounds that there was not evidence to return a verdict in favor of Edson and also that the Court was in error in giving jury instructions relating to contributory negligence.

“3. That a new trial be granted on the issue of damages only and that

“4. Judgment previously entered in favor of defendant Edson and against plaintiff Jach shall be and is hereby vacated.” This “order” was filed and entered in the judgment book. Defendant appealed “from the judgment notwithstanding the verdict in favor of plaintiff and from an order granting a partial new trial, dated December 16, 1966.” The order does not purport to be and is not a judgment. (Cf.

Prothero

Superior Court,

196 Cal. 439, 443 [238 P. 357].) An appeal from a nonexistent judgment is a nullity. As a consequence, defendant’s purported appeal from the judgment notwith

[95]

Jach v. Edson

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COUGHLIN, J.

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