Chaffee Bros. v. Powers Elevator Co.

Christianson, J.

This action was brought to recover damages for the alleged conversion of a crop of wheat upon which plaintiff claims a lien by virtue of a chattel mortgage given to him by one Klemstein. The defendant, in its answer, denied all the averments of the complaint. The ease was tried to a jury. At the close of the entire testimony, defendant moved for a directed verdict. The plaintiff’s attorney did not resist the motion, but conceded that the motion ought to be granted, and in. effect consented to a direction of verdict in defendant’s favor.

The record shows that the following colloquy took place after defendant had moved for a directed verdict:

Mr. Burdy (defendant’s attorney) : I understand that plaintiff concedes at this time that the defendant is entitled to a directed verdict. At this time the defendant moves the court to direct a verdict in favor of the defendant.

Mr. McCue (plaintiff’s attorney) : I can’t see any other way out of it, Judge.

The Court: The motion is allowed.

Mr. McCue (plaintiff’s attorney) : I have done al! I could and there is nothing there.

The Court: Gentlemen of the jury: Under the record as it now stands the motion for a directed verdict, made by defendant, is allowed. The plaintiff does not resist the motion in any way, but, in order to make the record complete, I will ask this first gentleman to sign the verdict as foreman of the jury. (After the verdict was signed by the foreman and read by the court.) The clerk may file the verdict, so you may be excused.

Judgment was entered pursuant to the verdict on March 9, 1917. On March 28, 1917, the plaintiff gave notice of a motion for a new trial. The motion came on for hearing on April 12, 1917, and after hearing the court denied the same for the avowed reasons that the plaintiff had to all intents and purposes agreed to a directed verdict in favor of defendant. And that in any event the plaintiff had failed to show the amount of wheat sold to the Elevator Company and the price thereof, so that there was no evidence from which the jury could ascertain the amount of the liability of defendant, if any. Notice of entry of the order denying a new trial was served on plaintiff’s counsel on April 16, 1917. No appeal was taken from tbe order denying a new trial. But on August 3, 1917, plaintiff appealed from tbe judgment. No mention is made on tbis appeal of tbe motion for a new trial, and no error is attempted to be predicated on tbe denial of sucb motion. Tbe only error assigned on tbis appeal is that tbe court erred in sustaining tbe defendant’s motion for a directed verdict, and in entering judgment in favor of defendant for a dismissal of plaintiff’s action.

It seems clear that upon tbis record tbe judgment appealed from should be affirmed. Tbe record (wbicb we bave quoted) clearly shows that tbe plaintiff expressly invited, and in effect consented to, tbe ruling which tbe court made upon tbe motion for a directed verdict. Tbe judgment subsequently entered followed as a matter of course. It is axiomatic that “be who consents to an act is not wronged by it,” and that “acquiescence in error takes away tbe right of objecting to it.” Comp. Laws 1913, §§ 7249, 7250.

Whether tbe court should bave granted a new trial is not before us. Lor no appeal has been taken from tbe order denying a new trial Tbe remedies afforded by an appeal from a judgment and an appeal from an order denying a new trial are independent remedies. King v. Hanson, 13 N. D. 85, 99 N. W. 1085. And it is well settled that an order denying a new trial entered subsequent to tbe judgment cannot be reviewed on an appeal from tbe judgment. Paulsen v. Modern Woodmen, 21 N. D. 235, 130 N. W. 231; Heald v. Strong, 24 N. D. 120, 138 N. W. 1114; Shockman v. Ruthruff, 28 N. D. 597, 149 N. W. 680. See also 4 C. J. 684.

It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.

Grace, J. I concur in result.