Leplat v. Wiles

PETERS, P. J. Defendant Wiles moves to dismiss an appeal by plaintiff from an order denying her motion for judgment notwithstanding the verdict. The motion is on the ground that the appeal was taken too late. The facts are as follows:

Plaintiff brought an action for damages for personal injuries received by her when struck by an automobile driven by one Rosati. Wiles was joined as a defendant on the allegation that he permitted Rosati to drive the ear. The jury, on March 10, 1942, returned a verdict against Rosati, but in favor of Wiles. Thereafter, the following occurred:

March 10, 1942—plaintiff moved for judgment against Wiles notwithstanding the verdict, reserving the right to move for a new trial if the motion were denied. The order denying the motion was entered the same day.

March 12, 1942—judgment entered.

March 16,1942—plaintiff filed a notice of motion for a new trial against Wiles.

April 21,1942—motion for a new trial granted as to Wiles.

May 15, 1942—plaintiff filed her notice of appeal from the order denying her motion for judgment notwithstanding the verdict. It is this appeal defendant seeks to dismiss.

May 21, 1942—defendant appealed from the order granting the new trial.

Section 963, subdivision 2, of the Code of Civil Procedure specifically includes an order “denying a motion for judgment notwithstanding the verdict” in cases where a jury trial is a matter of right, among the appealable orders. Section 939 of the Code of Civil Procedure provides that: “An appeal may be taken from any . . . order . . . from which [85]an appeal lies under any provision of this code, . . . within sixty days from the entry of said . . . order. ’ ’ The time limit thus fixed is jurisdictional.

Defendant urges that, inasmuch as the order here appealed from was entered March 10th and the appeal was not taken until May 15th, more than sixty days thereafter, the appeal must be dismissed. Although plaintiff filed no written opposition to the motion as required by the rules, at the hearing he urged that under section 629 of the Code of Civil Procedure his time for appeal was extended by implication until after the determination of the motion for a new trial. Section 629 provides that a motion for judgment notwithstanding the verdict must be made before entry of judgment, and may be made, as it was in the instant ease, in the alternative, reserving to the moving party the right to move for a new trial if the motion is denied. The section further provides that in such a case the trial court on the motion for a new trial, or the appellate court on appeal from the judgment or order denying the motion for judgment notwithstanding, may order judgment notwithstanding the verdict to be entered, “where a new trial was denied." But “where a new trial is granted . . . the order denying the motion for judgment notwithstanding the verdict shall not be reviewed on appeal, unless the adverse party appeal from the order granting a new trial, in which case the order denying judgment notwithstanding the verdict may be reviewed on appeal."