Opinion
Record No. 1996
November 22, 1938
Present, Campbell, C.J., and Holt, Gregory, Eggleston and Spratley, JJ.
1. VERDICT — Necessity for — Discharge of Jury after Striking Evidence — Case at Bar. — In the instant case, an action for injuries sustained in an automobile collision, issue was joined and a jury impaneled to try the same. On motion of defendants, over objection of plaintiff, plaintiff's evidence was stricken and the trial court thereupon discharged the jury, which had rendered no verdict, and entered a final judgment for defendants.
Held: Error. Since there was no waiver of a trial by jury its verdict was an indispensable step in the proceedings, and without the verdict the trial court had no power or authority to enter final judgment.
2. APPEAL AND ERROR — Appealable Judgments — Necessity for Valid Final Judgment. — Where there is no valid final judgment before the Supreme Court of Appeals, it is not in a position to pass upon the merits of a case.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Allan R. Hanckel, judge presiding.
Reversed and remanded.
The opinion states the case.
W. M. Phipps, Reuben E. Spandorfer and J. Randolph Davis, for the plaintiff in error.
W. C. Pender, for the defendants in error.
Claudia Heath filed a notice of motion for judgment against Kathryn Jane Mooers and Mooers Motor Car Company, Incorporated, claiming damages for injuries sustained by her in an automobile collision. The plaintiff below alleged that at the time of the collision she was a passenger in a car which was being driven by Kathryn Jane Mooers, that the latter was the agent of Mooers Motor Car Company, Incorporated, and was guilty of gross negligence which proximately caused the collision.
Issue was joined in the pleadings and a jury was impaneled to try the same. At the conclusion of the plaintiff's evidence it was stricken out by the court on the motion of the defendants over the objection of the plaintiff. Whereupon the court discharged the jury, which had rendered no verdict, and entered a final judgment for the defendants.
We are of opinion that this was error. There was no waiver of a trial by jury, hence its verdict was an indispensable step in the proceedings. Without this verdict the court had no power or authority to enter a final judgment upon the issue joined.
Since there is no valid final judgment before us, we are not in a position to pass upon the merits of the case.
The judgment is reversed and the case is remanded for a new trial.
Reversed and remanded.