The law authorizing judgment notwithstanding the verdict was first enacted as chapter 63 of the Session Laws of 1901, which is entitled: "AN ACT Authorizing District Courts and Also the Supreme Court of the State to Direct Judgment to be Entered in Certain Cases Instead of Granting a Motion for a New Trial." It reads as follows: "In all cases where at the close of the testimony in the case tried, a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion was denied, the trial court on motion made that judgment be entered notwithstanding the verdict, or on motion *Page 59 for a new trial, shall order judgment to be entered in favor of the party who was entitled to have a verdict directed in his or its favor; and the supreme court of the state on appeal from an order granting or denying motion for a new trial in the action in which such motion was made, or upon a review of such order or an appeal from the judgment, may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his, or its favor, whenever it shall appear from the testimony that the party was entitled to have such motion granted."
To have the benefit of this statute it was necessary to make a motion for a directed verdict at the close of all the testimony. If the motion is denied, a motion could be made thereafter for judgment notwithstanding the verdict, or a motion could be made for a new trial, and on the hearing of the motion for judgment notwithstanding the verdict, or on the hearing of a motion for a new trial, the trial court might order judgment notwithstanding the verdict. If judgment was ordered on a motion for new trial the party aggrieved might appeal to the supreme court from such order. The supreme court on appeal from an order granting, or denying, a motion for a new trial, in the action in which such motion was made upon review of such order, that is, the order denying, or granting, the motion for a new trial, might order judgment in favor of the party who was entitled to have such verdict directed in his favor and if the motion for judgment notwithstanding the verdict was granted, or denied, the supreme court on appeal from the judgment may order and direct judgment to be entered in favor of the party who was entitled to have such verdict in his, or its, favor. This is clearly expressed in the statute. This statute does not provide for the alternative motion for judgment notwithstanding the verdict, or for a new trial. It is clear that it was the intent of the legislature to make the order granting, or denying, a new trial appealable and the motion for judgment notwithstanding the verdict non-appealable. It specifically provides for a review of the order granting, or refusing, a new trial on appeal from such order, and the order granting, or refusing, judgment notwithstanding the verdict when not made in the alternative may be reviewed on appeal from the judgment.
This law was amended by chapter 133 of the Session Laws of 1921 but it retained the provision that the motion for a directed verdict be *Page 60 made at the close of the testimony and provided for the alternative motion for judgment notwithstanding the verdict, or for a new trial, and closes with this provision: "If the motion for judgment notwithstanding the verdict be denied, the supreme court, on appeal from the judgment, may order judgment to be entered, when it appears from the testimony that a verdict should have been directed; and it may also so order on appeal from thewhole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order." Under this statute the right to review an order granting, or denying, a motion for judgment notwithstanding the verdict on appeal from the judgment is preserved and when the motion is made in the alternative it may be reviewed on appeal from the whole order granting, or denying, a new trial.
The law was again amended by chapter 335, Session Laws 1923, § 7643, Supplement to the Compiled Laws 1913. This law is quoted at length in Judge Nuessle's dissenting opinion and need not be repeated. Under this statute, as amended, the motion for a directed verdict must be made at the close of the testimony and if denied a subsequent motion may be made afterward praying for judgment notwithstanding the verdict and an order for judgment notwithstanding the verdict may also be made on motion in the alternative form asking therefor, or, if the same be denied, for a new trial. The ruling, on the motion for a directed verdict, may be reviewed by the supreme court without a motion for judgment notwithstanding the verdict, or a motion in the alternative, or, if the single motion for judgment notwithstanding the verdict is denied, or granted, the order may be reviewed on appeal from the judgment and judgment notwithstanding the verdict may be granted, or denied, accordingly and an appeal will lie from the order on motion made in the alternative granting, or refusing, a new trial. If an appeal will lie from an order granting, or denying, judgment notwithstanding the verdict, when made singly and not in the alternative form, it must be found in this statute for there is no other law in this state governing the subject.
The law contains no provision authorizing an appeal from such an order but it specifically provides for the review of such an order on appeal from the judgment. Throughout all the legislation on the subject the distinction is made and preserved that one order is non-appealable *Page 61 and the other is appealable. It is significant that the statute requires the appeal to be from the whole order when the order is on motion made in the alternative. The statute reads "If the motion for judgment notwithstanding the verdict be denied, the supreme court, on appeal from the judgment, may order judgment to be entered, when it appears from the testimony that a verdict should have been directed; and it may also so order on appeal from the whole order denying such motion when made in the alternative form whether a new trial was granted or denied by such order." In other words judgment notwithstanding the verdict may be ordered by the supreme court on appeal from the judgment, or judgment notwithstanding the verdict may be ordered by the supreme court on appeal from the whole order made on a motion in the alternative. Even when a motion is made in the alternative and denied an appeal will not lie from the order denying, or granting, judgment. The appeal must be from the whole order orthe question of ordering a judgment notwithstanding the verdict is not within the jurisdiction of the court. If an appeal will not lie from an order denying judgment notwithstanding the verdict when a motion is made in the alternative, but the appeal is not from the whole order, how can it lie when the motion is made, not in the alternative, but simply for judgment notwithstanding the verdict? If the motion was made after entry of judgment and if that is error it could be reviewed on appeal from the judgment. The order appealed from in this case does not prevent the entry of judgment and judgment was entered from which an appeal might be taken and all alleged errors reviewed. It is true that common law requires the motion to be made before judgment but we are not considering common law but the statute. It is conceded that the alternative motion for judgment notwithstanding, or for a new trial, may be made after the entry of judgment. If a motion for judgment notwithstanding the verdict can be made after the entry of judgment when coupled with a motion for judgment in the alternative, why cannot the motion be made after the entry of judgment when not made in the alternative and what reason is there for reading into the statute that one can be made after judgment and the other cannot? No reason has been given, and no reason can be given, why one must be made before judgment and the other may be made after judgment.
The statute does not say that the motion shall be made before *Page 62 judgment. It says but upon a subsequent motion for judgment notwithstanding the verdict the court shall grant the same if the moving party is entitled to it and an order for judgment notwithstanding the verdict may be made on a motion in the alternative form for judgment, or a new trial. In other words after verdict a party who has moved for a directed verdict at the close of the testimony may move for a judgment notwithstanding the verdict or he may also make the alternative motion. There is no precedence given to either motion in the statute. Either can be made after verdict and the party may take his choice. The difference is that if the motion is made in the alternative an appeal may be had from the whole order and a new trial may be had or denied, while on the single motion a new trial cannot be granted and the order can only be reviewed on appeal from the judgment.
Judge Nuessle has pointed out, in his dissenting opinion and it is likewise a matter of common knowledge among the practitioners, that from the very beginning of this legislation it has been the practice to make both, or either, motion after judgment and in the face of this practice for more than thirty years, this law has been re-enacted, amended twice and is still silent on the question of the time of making the motion, except that it must be made after verdict. But the first question to decide in this case is, is the order appealed from an appealable order?
It will be noted that subdivision one of § 7841, applies to each and every one of the subdivisions of that section. It says specifically "an order affecting a substantial right made in any action, when such order in effect determines the action andprevents a judgment from which an appeal might be taken." In the consideration of each subdivision there must be taken into consideration the question of whether the order appealed from prevents a judgment from which an appeal might be taken. If it does not then it is not appealable under any of the subdivisions. The order in the instant case does not prevent such judgment but specifically orders a judgment from which an appeal might be taken.
Section 7330, Compiled Laws 1913, defines an action as follows: "An action is an ordinary proceeding in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, redress or prevention of a wrong or the punishment of a public *Page 63 offense." Section 7331 defines special proceedings "Every other remedy is a special proceeding."
"The term `special proceedings' is generally used in contradistinction to the term `action.' The codes do not define the term, but, after defining an action, provide that every other remedy is a special proceeding." 1 Bancroft, Code Pr. Rem. p. 141, § 100. Special proceedings, as provided in chapter 42, §§ 8443 to 8474, are certiorari, mandamus, prohibition and miscellaneous proceedings.
Clearly the motions for judgment notwithstanding and the alternative motion are not special proceedings but are a part of the general proceedings in an action. It follows that the order appealed from was not made in a special proceeding and it is equally clear that it does not prevent a judgment from which an appeal might be taken.
The judgment should be affirmed.