Upper v. Poteet

DORAN, J. After rendition of a verdict in plaintiff’s favor in a personal injury action, the named defendants made a motion for judgment notwithstanding the verdict, and in the alternative, for a new trial, pursuant to section 629 of the Code of Civil Procedure. The trial court denied defendants’ motion for judgment notwithstanding the verdict but granted a new trial, and from the latter order plaintiff has appealed. The defendants then appealed from the order denying judgment non obstante veredicto, and from the judgment in plaintiff’s favor.

Plaintiff’s memorandum of points and authorities in sup[6]])ort of the motion to dismiss defendants’ appeal, states: “Plaintiff has offered to dismiss her appeal from the order granting the new trial, provided that defendants consent to a dismissal of their appeal from the denial of their motion for judgment n.o.v. Defendants have refused so to stipulate. This motion has as its object the dismissal of the defendants’ appeal, the plaintiff consenting to the dismissal of her appeal.”

Section 629 of the Code of Civil Procedure provides that “Where a new trial is granted to the party moving for judgment notwithstanding the verdict, 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.”

Construing section 629, Estate of Green, 25 Cal.2d 535 [154 P.2d 692], says: “As the latter order (denying motion for judgment notwithstanding the verdict) is reviewable on contestant’s appeal from the order granting proponent’s motion for a new trial, the latter’s appeal from the order denying their motion for judgment notwithstanding the verdict is not necessary nor is it proper under the provisions of section 629 of the Code of Civil Procedure just quoted. The appeal from the order denying the motion for judgment notwithstanding the verdict should be dismissed. However, proponents have lost no rights by such dismissal as the order denying their motion for judgment notwithstanding the verdict is reviewable under contestant’s appeal from the order granting proponents’ motion for a new trial as fully and completely as it would have been had the latter been entitled to a direct appeal from the order adverse to them.”

The defendant-appellants, Louis Poteet and United Parcel Service, ‘1 concede that if no appeal had been taken by Alberta Upper, plaintiff, . . . the defendants could not have taken an appeal in this case, inasmuch as their motion for a new trial was granted. However, in this instance plaintiff filed her appeal. Rule 3(a) so far as pertinent to this situation provides as follows: