While I do not understand the facts in this case to be entirely as stated in the majority opinion, whatever the facts may be, they become unimportant in view of the holding in the majority opinion.
The question passed on is one of practice. The jury rendered a verdict for the defendants, which was by the trial judge ordered to be entered, and was thereafter duly *Page 239 filed. Thereupon counsel for plaintiff moved for judgment notwithstanding the verdict. The trial court, for reasons stated in the majority opinion and otherwise, as appear from the judgment, entered judgment for plaintiff notwithstanding the verdict of the jury for defendants. This appeal is from the judgment, and among other errors assigned appellants predicate error upon the action of the court in entering judgment nonobstante veredicto.
I am not in accord with the conclusions reached or the deductions made in the majority opinion as to the holdings of this court in the cases cited wherein questions involving this practice arose. Upon at least four occasions when the question has been considered by this court, it has never been held that a motion for the entry of, or the entry of, such a judgment is foreign to our practice, in a proper case. On the contrary, and by strongest inference, it has been held otherwise.
In Zilka v. Graham, 26 Idaho 163, 141 P. 639, it is said:
"It is a well-established rule that a motion to set aside a judgment and for a judgment non obstante veredicto comes too late if made after judgment is entered. Such motion must bemade immediately after the verdict and before the judgment isentered."
Clearly, had the motion for judgment non obstante veredicto been made immediately after the verdict was rendered and before the entry of judgment, it would have been in time and not improper.
In Bow v. R. N. Oil Gas Co., 43 Idaho 80, 251 P. 295, the denial by the trial court of appellant's motion for judgmentnon obstante veredicto was assigned as error. This court stated that it would examine the evidence for the purpose of determining whether or not the trial court erred in denying the motion, and held that such motion should have been granted as against certain of the defendants. In that case the question was squarely passed upon and decided. On petition for rehearing, it was found that the amount of the judgment might be collected from certain of the defendants, and the judgment was therefore reversed *Page 240 as to all of the defendants and a new trial granted. The opinion on rehearing does not, however, retract the holding in the original opinion, that the trial court erred in not granting appellant's motion for judgment non obstanteveredicto.
In Cady v. Keller, 28 Idaho 368, 154 P. 629, appellant moved for judgment notwithstanding the verdict, the court denied the motion and judgment was entered in favor of respondent. It was held on the appeal that:
"In the Idaho practice no provision is made for an appeal from an order denying a motion for judgment notwithstanding the verdict, and it is not, therefore, an appealable order."
The fact that it is not an appealable order is not tantamount to holding that it is not the proper practice, the inference being that such a motion might be reviewed in a bill of exceptions, on appeal from the judgment.
In Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546, after the return of the verdict a motion was made by the appellant "for an order granting to it a judgment in its favor and against the plaintiff herein, notwithstanding the verdict rendered in favor of said plaintiff." The motion was denied, and the action of the trial court assigned as error. Upon review, this court stated that the right of respondent to make the motion for judgment notwithstanding the verdict would be considered later on in the opinion. An examination of the opinion discloses that the question was not discussed, the court disposing of the case upon other grounds, but reaching the same result as if the trial court had sustained the motion for judgment non obstante veredicto.
In Bowman v. Bohney, 36 Idaho 162, 210 P. 135, at the close of the evidence the trial judge stated that he would entertain a motion for judgment on the evidence and the pleadings. Thereupon plaintiff's counsel made a motion that the case be taken from the jury and that plaintiff recover judgment on the pleadings and the evidence. The court granted the motion and directed the entry of judgment in *Page 241 favor of plaintiff. In disposing of the point on appeal, the following language was used in the opinion:
" 'If, when the evidence on both sides is closed, plaintiff is entitled, as a matter of law, to a verdict, the proper practice is to request the court to direct a verdict in his favor; but to order judgment, instead of directing a verdict, is, at most an irregularity without prejudice, and no ground for a new trial.' (Duluth Chamber of Commerce v. Knowlton,42 Minn. 299, 44 N.W. 2.)
"In this case, on the uncontradicted evidence, there was no question for the jury, and respondent was entitled to the judgment which was entered. The fact that this improper procedure was followed to arrive at the correct result does not justify reversing the judgment."
In the case just above referred to, after all the evidence was submitted, the court discharged the jury, for the reason that the plaintiff was entitled, as a matter of law, to a judgment in his favor, and the trial court entered that judgment. In the instant case the trial court permitted the jury to return a verdict, which was entered and filed, and then, being clearly of the opinion that plaintiff was entitled to a judgment, entertained a motion for judgment non obstanteveredicto, and entered judgment in favor of plaintiff. Conceding that the procedure was irregular, the same result was reached as if the trial court had directed a verdict and entered judgment thereon, or discharged the jury and entered judgment for plaintiff, or set aside the verdict of the jury and entered judgment.
It is further held in Bowman v. Bohney, supra, that:
"On sustaining a motion for a directed verdict, the practice in some jurisdictions is to direct a verdict in favor of the moving party, and then enter judgment on the verdict. (38 Cyc. 1588, note 10.) In others the court discharges the jury and enters judgment for the party entitled thereto. (Ib., note 11.) We conclude that the former is the correct practice in this state, and the proper procedure in this case would have been for respondent to have made a motion for a directed verdict, for the court to have sustained the *Page 242 same, and then entered judgment on the verdict, instead of discharging the jury, and order judgment entered without a verdict. . . . . 'but to order judgment, instead of directing a verdict, is, at most an irregularity without prejudice, and no ground for a new trial.' "
In the case at bar, under the evidence, there was no question for the jury, and plaintiff was entitled to a judgment, as a matter of law. It was not, therefore, prejudicial error for the court, when all of the evidence on both sides was in, to enter the proper judgment; and the fact that the trial court did not direct a verdict or that it did not discharge the jury and enter a judgment, but entered judgment non obstante veredicto, while it may have been irregular, was not such error as would warrant a reversal of the judgment and the ordering of a new trial.
In Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090, the question of the refusal of the trial court to grant plaintiff's motion for nonsuit at the conclusion of the introduction of testimony by defendant in support of his counterclaim, was discussed, and the opinion states that the serious question in the case was whether there was sufficient evidence to justify the trial court in submitting the case to the jury. After reciting what the evidence showed, the opinion holds:
"We think that it was the duty of the court, after all of the testimony had been submitted, to have taken the case from the jury and directed that judgment be entered for the appellant (plaintiff). Where a party is entitled to have a verdict directed in his favor at the close of the evidence, and the case is reversed on his appeal, a new trial will not be granted. The case should be reversed with instructions for judgment to be entered in his favor."
C. S., see. 6728, provides:
"The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect." *Page 243
The fact that improper procedure may have been followed to arrive at the correct result in the instant case, under the above statutory provision it would not justify reversing the judgment. For a collection of cases under this statute, see Clark's Idaho Digest, Harmless and Reversible Error, subd. E, p. 131.
So long as the majority opinion is the law of this jurisdiction, no situation could arise that would authorize the trial court to enter judgment non obstante veredicto. In such circumstances, however meritorious and in keeping with the administration of justice, no relief could be afforded to the party moving for judgment non obstante veredicto; but, as in the instant case, the party moving therefor, although entitled to judgment as a matter of law, must, by reason of an irregularity in procedure, be denied relief. Such a situation arose in the state of California, whereupon the legislature of that state, by amendment to its Code of Civil Procedure (sec. 629) in 1923, expressly authorized such practice. In some jurisdictions the practice is upheld in the absence of statute, in others, expressly provided for by statute. There are jurisdictions wherein it is held that a motion for judgment nonobstante veredicto is directed to the pleadings only, and in others it is directed both to the pleadings and the evidence, or the evidence alone. The views herein expressed may be the means of calling to the attention of the bar the advisability of providing for such practice by statute.
I am thoroughly convinced that the ends of justice demanded that the instant case be decided upon its merits, and I cannot bring myself in accord with the disposition of the case upon an irregularity in procedure which cannot affect the substantial rights of the parties. The error committed by the trial court was at most technical and should, therefore, be disregarded, both under the statute cited supra and the numerous authorities to which attention is directed.
T. Bailey Lee, J., concurs. *Page 244