Opinion
February, 1906.
Langbein Langbein (Leonard J. Langbein of counsel), for appellant.
Nathaniel Levy, for respondent.
The appeal record shows that, after the plaintiff had rested, the defendant, having unsuccessfully moved to dismiss the complaint, rested without introducing any proof. Thereupon, defendant's counsel renewed his motion to dismiss and also moved for a direction in favor of defendant, and plaintiff's counsel moved for a direction in favor of plaintiff.
Defendant's motions were denied and plaintiff's motion was granted.
Defendant's counsel then moved for a new trial, "upon all the grounds specified in section 999 of the Code," and this motion was denied.
It appears that, immediately after this disposition of the case, the counsel conferred with the court, and that the court agreed to receive briefs and reconsider the matter.
The parties are not in accord as to what precise motion or motions the court then understook to consider, but the record shows that the learned justice before whom the cause was tried rendered an opinion in which he referred to the motion as one "to set aside the verdict as contrary to law and the evidence"; that he granted said motion, entered an order in accordance therewith, and denied defendant's subsequent motion seeking to resettle said order.
Defendant appeals from the order granting a new trial, contending that the proper practice was to set aside the verdict directed for the plaintiff and direct a verdict in favor of defendant. So far as the record discloses, defendant's motion was granted; and, under such circumstances, it is difficult to comprehend how he can successfully appeal from an order entered in his favor upon his own motion.
It seems to me fruitless here to consider what course of procedure might or should have been followed by the court below or by the defendant's counsel.
It may be suggested that, had the defendant contented himself with his exceptions to the court's rulings upon the motions to dismiss and to direct verdicts, this court might have been in a position, upon an appeal from the judgment, to make a final disposition of the case; but, upon the record as presented, appellant seems to have obtained all it asked for, and no convincing reason justifying an appeal on its part is apparent.
SCOTT and GIEGERICH, JJ., concur.
Order affirmed, with costs and disbursements.