dissenting, on petition for rehearing.
I reluctantly disagree with the proposed disposition of the petition for rehearing by Justice Pederson. However, I agree with the part that states, in effect, from here on in the rule will be applied as written.
A procedural rule duly adopted by the Supreme Court is the equivalent of a law enacted by the Legislature on procedural matters as distinguished from a substantive matter.
Under the present Judicial Article, the authority to promulgate procedural rules is vested in the Supreme Court. Prior thereto procedural matters were generally the result of either a legislative enactment or judicial promulgation. Generally, the latest product of either branch prevailed.
Rule 50 of the North Dakota Rules of Civil Procedure was initially adopted by this Court in 1957. Subdivision (c) thereof has not been amended since its adoption, and provides as follows:
“(c) Same — Conditional Ruling on Grant of Motion.
“(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.”
This rule is self-explanatory.
The official Procedure Committee Notes are silent as to Rule 50(c). However, Buck-lin’s Commentaries (1971), which had been made available to the Bar as related to this Rule, in part states:
“Where an alternative motion is made, a trial court is required by Rule 50 to rule on both the motion for a new trial and a motion for judgment. The purpose is to avoid two appeals which could otherwise result if the trial court rules on only part of the alternative motion and is found wrong. The rule adopts the procedure described in some detail in Montgomery Ward & Co. v. Duncan, 331 U.S. 243 [61 S.Ct. 189, 85 L.Ed. 147] (1940).”
In 1963 this Court, in Chicago, Milwaukee & St. Paul Pacific Railroad v. Johnston’s Fuel Liners, Inc., 122 N.W.2d 141 (N.D. 1963), had under consideration Rule 50(c) where a party moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The trial court grant*366ed judgment notwithstanding the verdict.1 On appeal, this Court vacated the judgment notwithstanding the verdict and remanded the case to the trial court for a ruling on the motion for a new trial. Later, in 1967, this Court, in Johnson v. Frelich, 153 N.W.2d 775 (N.D. 1967), followed the precedent set in Johnston’s Fuel Liners, Inc., supra.
The record before us does not disclose that Kroh relied upon the above-mentioned North Dakota cases for not having requested the trial court to make a conditional ruling on the motion for a new trial. Nor does the record contain any information that either Kroh or the trial judge was misled as a result of the two North Dakota cases. Furthermore, Kroh does not contend that the cases in some manner were responsible for the court’s failure to act on the motion for a new trial.
In my opinion, it is the responsibility of the attorney to call to the attention of the trial judge certain rules that apply in a given situation if the trial judge sua sponte does not implement the appropriate applicable rule.
We have in numerous instances expressed a rule of law that if the attorney has not requested certain action to be taken or objected to the action taken by the trial court, the attorney’s arguments on appeal on that point will not be seriously considered. As an example, our opinions are replete with case law expressing the legal concept that unless the attorney has either requested certain jury instructions or objected to them, a subsequent objection or allegation of error on appeal will not be given serious consideration, provided the proposed instructions were made available in sufficient time to the parties to examine them. This concept should apply to Rule 50(c), NDRCivP.
The statements in Fuel Liners, Inc. and Frelich, supra, may well have been prompted on the premises that the rules were a new product and that the court, in all probability, wished to give the practicing bar additional time to become acquainted with them and, therefore, declined to enforce them at that stage. Be that as it may, I believe ample time has since then expired to fully implement the rule and to apply it as it is. The Rule is not written in stone nor is it sacrosanct. If the Rule is too harsh then it should be changed, otherwise it should be followed.
I find it difficult to accept the proposition that a court, after going through a regular process in promulgating and adopting rules, should then fail to apply, follow or enforce them. This leads to the ultimate rhetorical question: “If the Supreme Court will not respect its rules which it has promulgated, will the court or its opinions be respected?” The answer is obvious.
I believe it is basically the attorney’s responsibility to make sure that the proper procedures in accordance with the rules are adhered to and followed and call them to the attention of the trial judge. This responsibility is shared by the trial judge but should not be shifted to the trial judge. It is not an excuse, in my opinion, to merely show that a trial court did not act in accordance with the rules unless the attorney also informed the trial judge about the rule and the trial judge refused to act in accordance with the rules.
*367In my view, regarding the alternatives set out in Justice Pederson’s response on the petition for rehearing, I would select either number 3 that failure to rule on the alternative motion for a new trial constituted a denial of the motion and we would accordingly proceed to determine whether or not the trial court abused its discretion in denying the motion for new trial; or I would follow alternative number 4 that the failure of the movant in the trial court to press for a ruling on the alternative motion for a new trial constituted a waiver of the motion.
In any event, I would fully implement that provision of Rule 50(c) of the North Dakota Rules of Civil Procedure now rather than applying it in the future.
PAULSON, J., concurs.
. The opinion quotes the third paragraph of the order for judgment which granted the motion to the third-party defendant for judgment notwithstanding the verdict, as follows:
“... that there being a total failure of proof on the proposition of proximate cause as relates to the third-party defendant Leonard Prince, an individual doing business under the trade name of Regent Oil Company, and it appearing further from the exhaustive evidence adduced at the trial which consumed seven days, there is no reasonable probability that this defective proof can be supplied upon another trial, such new trial is not ordered.”
This Court, with reference to the order for judgment, observed:
“The Court having granted judgment notwithstanding the verdict, the only reasonable construction we can give the language which concludes a new trial is therefore not ordered, is that the court ruled only on the motion notwithstanding the verdict and did not pass on the motion for a new trial.”