Opinion
No. 40211.
March 18, 1930.
JUDGMENT: On Trial of Issues — Judgment Notwithstanding Verdict 1 — Untimely Motion. A motion for judgment notwithstanding the verdict is not germane to a motion for new trial, and cannot be considered if filed as an amendment to the motion for new trial after the lapse of five days from verdict.
APPEAL AND ERROR: Review — Scope and Extent — Harmless Error
— Errors Against Appellee Neutralizing Errors Against Appellant.
PLEADING: Reply — Belated Filing — Effect. A reply may be 3 permitted, within the discretion of the court, after the close of plaintiff's evidence and after the court has overruled a motion for a directed verdict.
Headnote 1: 15 R.C.L. 608. Headnote 3: 21 R.C.L. 555.
Appeal and Error: 4 C.J., § 3047, p. 1061, n. 32. Judgments: 33 C.J., § 117, p. 1187, n. 76; p. 1188, n. 80.
Appeal from Des Moines Municipal Court. — J.E. MERSHON, Judge.
Action at law to recover on an accident policy. The jury returned a verdict in favor of the plaintiff, but the court sustained a motion for judgment in favor of the defendant notwithstanding the verdict. The plaintiff appeals. — Reversed.
Hyman E. Miller, for appellant.
Parrish, Cohen, Guthrie, Watters Halloran and Stuart S. Ball, for appellee.
I. The trial of the case was concluded February 19, 1929. On March 5th, appellee filed a motion for new 1. JUDGMENT: on trial, and on March 9th, another motion, trial of entitled "An amendment to the motion for new issues: trial," for judgment notwithstanding the judgment verdict. The motion for new trial was not ruled notwith- upon by the court, but, as stated, the motion standing for judgment was sustained. Appellee concedes verdict: that, if the second motion was not germane and a untimely proper amendment of the motion for a new trial, motion. it was filed too late, and could not be considered by the court.
Section 11550 of the Code of 1927 provides the grounds upon which a motion for new trial may be based. Section 11553 of the Code of 1927 authorized the filing of a motion for judgment by the losing party notwithstanding the verdict against him, upon certain grounds therein specified. Section 11556 requires such motion to be filed within the same time as motions for new trial. Motions for new trial must be filed within five days after the verdict, unless time therefor is extended by the court. The motion for judgment notwithstanding the verdict, having been filed more than five days after the verdict, was manifestly too late, and the court could not properly consider it. This motion is in no sense a motion for new trial, and bears no relation thereto. Its purpose is to avoid a new trial and to secure a final judgment in favor of the movant.
II. Appellee moved for a directed verdict at the close of the testimony for appellant, and again at the close of the evidence. Both motions were overruled. It is now contended by counsel for appellee that, as these motions should have been 2. APPEAL AND sustained, the ruling of the court on the motion ERROR: for judgment notwithstanding the verdict was review: without prejudice to appellant. There is no scope and cross-appeal. If, however, the contention of extent: appellee is correct, this court may, harmless notwithstanding the error in the ruling on the error: errors against appellee neutralizing errors against appellant. motion for judgment, affirm. Voorhees v. Arnold, 108 Iowa 77; State v. Consolidated Ind. Sch. Dist., 188 Iowa 959; Snell v. Dubuque S.C.R. Co., 88 Iowa 442; Royer v. King's Crown P. Co., 147 Iowa 277; Landis v. Interurban R. Co., 173 Iowa 466.
Following the ruling of the court on the first motion to direct a verdict, appellant filed a reply to the answer, which alleged full payment and satisfaction of the indemnity as a defense. The reply alleged that the settlement, which was evidenced by a receipt in full, was obtained by fraud and mistake.
It is appellant's claim that he is unable to read, and therefore did not read the contents of the receipt, and that he believed the settlement was partial only, and did not relate to future-continuing disability.
The evidence in support of the allegations of the reply is meager, but we are disposed, without further comment thereon, to remand the case to the court below. The contention of appellee that the mistake, if any, was all on one side depends upon the inferences that may be drawn from the evidence. We shall not further discuss the evidence.
III. As stated, appellant's reply was filed after the ruling of the court on the first motion for a directed verdict. It is claimed that this was too late, and that the court abused its discretion in authorizing the same to be filed. 3. PLEADING: Ample opportunity was left for appellee in which reply: to meet all of the allegations of the reply with belated testimony. No continuance of the case was asked. filing: It is clear that the court did not abuse its effect. discretion.
For the error pointed out, the judgment is — Reversed.
MORLING, C.J., and De GRAFF, ALBERT, and WAGNER, JJ., concur.