Estate of Caldwell

WASTE, C. J.

This cause was taken over after decision in the District Court of Appeal, Second Appellate District, Division Two, in order that we might more thoroughly consider the questions of law involved. An examination of the authorities satisfies us as to the correctness of the opinion heretofore prepared by Mr. Justice Fricke, pro

tempore,,

and we hereby adopt the same as and for the decision of this court. It reads:

‘This is an appeal from a judgment notwithstanding the verdict of the jury.

“Appellant’s first point is that the order granting a motion for judgment notwithstanding the verdict is erroneous for the reason that such a motion can only be granted where the moving party before verdict has requested the court to direct a verdict in his favor.

“Section 629, Code of Civil Procedure, providing for the granting of a judgment notwithstanding the verdict, so far as it applies to the question before us, reads: ‘When a motion for a directed verdict which should have been granted, has been denied and a verdict rendered against the moving party, the court at any time before the entry of judgment, either of its own motion or on motion of the aggrieved party, shall enter judgment in favor of the aggrieved party notwithstanding the verdict. ’ By the language of this provision the making and denial of a motion for a directed verdict is made a condition precedent to the entry of a judgment notwithstanding the verdict. In the absence of such a motion and its denial the court was not authorized to grant a motion for judgment notwithstanding the verdict.

[696]

{In re Estate of Easton,

118 Cal. App. 659 [5 Pac. (2d) 635].)

“Respondents do not urge that this is not the law hut contend that a motion for a directed verdict was made and in support of this contention refer to three matters in the record—a recital in the judgment; a statement by counsel and the court’s response; and the refusal of a requested instruction to the jury to find for defendants.

“Respondents contend that the recital in the judgment that a motion for a directed verdict was made and denied is conclusive. "While a recital in a judgment is conclusive as to the actions of the trial court where there is no bill of exceptions or reporter’s transcript or other portion of the record showing the facts, this is not the rule where the record on appeal, as here, includes the reporter’s transcript, duly certified as comprising a full, true and correct transcript of ‘all rulings, instructions, acts and statements of the court’, and such transcript shows neither the making nor the denial of a motion for a directed verdict, evidence quite conclusive that no such motion was ever made or ruled upon by the trial judge. Where the record shows, as it does here, that an essential prerequisite to the entry of a judgment notwithstanding the verdict did not exist, the record must prevail over the recital in the judgment where such judgment is attacked upon the ground that the prerequisite had no existence and that the recital in the judgment is not sustained by the record.