On Motion for Certiorari and Rehearing. Appellee moves for certiorari to perfect the record by bringing up copy of motion for judgment filed by appellee. It is ordered that the certified copies attached to the *Page 370 motion be filed and considered as a part of the record. The record thus perfected shows that counsel filed a motion which reads:
"Comes now Mrs. Elsie Scott Hines, feme sole, Plaintiff in the above styled and numbered cause, and moves and prays the Court to render and cause to be entered judgment in favor of the Plaintiff of terms and form or substance of that shown in Exhibit "A" attached hereto and made a part hereof.
"Alternatively and in event the Court deems that judgment of the terms, form or substance of that described in said Exhibit "A" is improper, Plaintiff prays and moves the Court to render and enter judgment in the cause in terms and form or substance of that shown in Exhibit "B" attached hereto and made a part hereof."
It is insisted the motion is sufficient to show compliance with the statutory provision authorizing judgment non obstante veredicto upon motion and notice.
Article 2211 R.S., as amended by chapter 77, Acts 42d Legislature (1931) p. 119 (Vernon's Ann.Civ.St. art. 2211), reads: "The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence."
We do not regard the motion and attached exhibits as constituting a motion for judgment non obstante veredicto as required by the statute. The provision which permits a judgment non obstante veredicto is an exception to the general rule, and therefore a party seeking to bring himself within such exception must apprise the court, as well as the opposite party, of the grounds upon which he depends. By the provision for motion and a reasonable notice, it was evidently the intention of the Legislature that a party seeking to have judgment rendered in his favor notwithstanding the verdict should notify the opposite party of the grounds upon which he depended in order that such opposite party might have an opportunity to contest the existence thereof.
The motion is the ordinary one for judgment upon special issue findings. There is nothing to indicate an attack upon any finding. Both of the forms of judgment tendered with the motion purport to be judgments upon the findings. The judgment rendered was that shown by Exhibit B.
Certainly there is a difference between a motion for judgment upon the jury's findings and a motion non obstante veredicto.
No particular form is required for a motion of the latter nature, but it must sufficiently disclose its nature. We think a motion which makes no attack upon the sufficiency of the evidence to support a general verdict or a special issue finding cannot properly be considered as a motion for judgment non obstante veredicto.
The motion does not attack any finding and the judgment rendered purports to be based upon the findings. The perfected record does not aid appellee.
It is also urged the point was not raised by appellee. We think it was. But if not raised, the result must be the same, for the judgment must conform to the verdict and failure so to do is fundamental error. 3 Tex.Jur. p. 828, and cases cited in note 14.
The motion for rehearing is overruled.