Opinion
No. 4240.
Argued October 7, 1953.
Decided October 30, 1953.
A party who merely moves to set aside the verdict and for judgment notwithstanding the verdict rendered against him, with no exceptions taken during the trial or motions for nonsuit or directed verdict, waives his right to question the sufficiency of the evidence to support the verdict. A motion of a party to set aside an adverse verdict and for judgment notwithstanding it raises the single question of whether no reasonable man could fail to find in his favor. In an action for malicious prosecution which resulted in a verdict for the plaintiff it was not within the jurisdiction of the Trial Court, in the absence of motions questioning the sufficiency of the evidence, to set aside the verdict for the reason "that the evidence was insufficient to sustain a finding of want of probable cause." In such case, where the Trial Court failed to pass upon the question of the weight of the evidence upon motion to set aside the verdict and for judgment notwithstanding, the case was remanded for determination of that issue.
ACTION ON THE CASE, for malicious prosecution. Trial by jury resulting in a verdict for the plaintiff. The defendants saved no exceptions during the trial and made no motion for a nonsuit or directed verdict. However, they did file a motion to set aside the verdict and to enter judgment in their favor notwithstanding, on the grounds that the verdict was against the law, against the evidence and the weight of the evidence, that the jury was influenced by passion and prejudice and fell into a plain mistake and that the verdict was excessive. The Court granted the motion on the ground of the insufficiency of the evidence to sustain a finding of want of probable cause, and the plaintiff excepted. Further facts appear in the opinion. Transferred by Leahy, J.
Morris D. Stein and Nicholas Pantelas (Mr. Stein orally), for the plaintiff.
Albert Terrien (by brief and orally), for the defendants.
We have here a situation where the defendants saved no exceptions during the trial and made no motions for a nonsuit or direct verdict. They have therefore waived their right to question the sufficiency of the evidence to support a verdict (Simes v. Atwell, 85 N.H. 537), or to raise any issues except such as fall within the scope of their motion to set aside the verdict and enter judgment for them. Ayers v. Gordon, 94 N.H. 30, and cases cited. However, their motion alleging among other grounds that the verdict was against the weight of the evidence did present to the Trial Court the question whether "no reasonable man could fail to find in favor of the defeated [parties] . . . ." Simes v. Atwell, supra, 537, 538. In granting this motion the Trial Court gave as its reason "that the evidence was insufficient to sustain a finding of want of probable cause." It thus appears that it decided the motion upon an issue which was not properly before it, but did not pass on the question of the weight of the evidence as should have been done under our practice. Condiles v. Waumbec Mills, 95 N.H. 227, and cases cited. In this situation the case must be remanded that it may do so. Colby v. Varney, 97 N.H. 130, 134. The present order is vacated.
Exceptions sustained.
All concurred.