Upper v. Poteet

ALBERTA UPPER, Plaintiff and Appellant, v. LOUIS POTEET et al., Defendants and Appellants.

COUNSEL

William Barnett Spivak and Jacob Chaitkin for Plaintiff and Appellant.

Schell, Delamer & Loring for Defendants and Appellants.

OPINION

DORAN, J.

After rendition of a verdict in plaintiff's favor in a personal injury action, the named defendants made a motion for judgment notwithstanding the verdict, and in the alternative, for a new trial, pursuant to section 629 of the Code of Civil Procedure. The trial court denied defendants' motion for judgment notwithstanding the verdict but granted a new trial, and from the latter order plaintiff has appealed. The defendants then appealed from the order denying judgment non obstante veredicto, and from the judgment in plaintiff's favor.

Plaintiff's memorandum of points and authorities in support [116 Cal. App. 2d 6] of the motion to dismiss defendants' appeal, states: "Plaintiff has offered to dismiss her appeal from the order granting the new trial, provided that defendants consent to a dismissal of their appeal from the denial of their motion for judgment n.o.v. Defendants have refused so to stipulate. This motion has as its object the dismissal of the defendants' appeal, the plaintiff consenting to the dismissal of her appeal."

Section 629 of the Code of Civil Procedure provides that "Where a new trial is granted to the party moving for judgment notwithstanding the verdict, the order denying the motion for judgment notwithstanding the verdict shall not be reviewed on appeal, unless the adverse party appeal from the order granting a new trial, in which case the order denying judgment notwithstanding the verdict may be reviewed on appeal."

Construing section 629, Estate of Green, 25 Cal. 2d 535 [154 P.2d 692], says: "As the latter order (denying motion for judgment notwithstanding the verdict) is reviewable on contestant's appeal from the order granting proponent's motion for a new trial, the latter's appeal from the order denying their motion for judgment notwithstanding the verdict is not necessary nor is it proper under the provisions of section 629 of the Code of Civil Procedure just quoted. The appeal from the order denying the motion for judgment notwithstanding the verdict should be dismissed. However, proponents have lost no rights by such dismissal as the order denying their motion for judgment notwithstanding the verdict is reviewable under contestant's appeal from the order granting proponents' motion for a new trial as fully and completely as it would have been had the latter been entitled to a direct appeal from the order adverse to them."

The defendant-appellants, Louis Poteet and United Parcel Service, "concede that if no appeal had been taken by Alberta Upper, plaintiff, ... the defendants could not have taken an appeal in this case, inasmuch as their motion for a new trial was granted. However, in this instance plaintiff filed her appeal. Rule 3(a) so far as pertinent to this situation provides as follows:

"When a valid notice of intention to move for a new trial is served and filed by any party within 60 days after entry of judgment, ... (2) if the motion is granted and an appeal is taken from the order granting it, the respondent, within 20 days after mailing of notification by the clerk of such appeal, [116 Cal. App. 2d 7] may file notice of appeal from the judgment as originally entered, and on that appeal may present any question which he might have presented on appeal from the judgment as originally entered." (Defendants' italics.)

"In the instant case, plaintiff did appeal from the order granting the motion for new trial, and within the time allowed defendants filed their notice of appeal from the judgment. Transcripts of the testimony have been obtained at considerable expense, and defendants desire to present their contentions to this court."

Plaintiff's concluding memorandum refers to an "abandonment of her appeal from the order granting a new trial." However, plaintiff's original memorandum says nothing about an "abandonment," nor does the record elsewhere show such abandonment. In plaintiff's own words, there was merely an offer "to dismiss her appeal from the order granting a new trial, provided the defendants consent to a dismissal of their appeal from the denial of their motion for judgment n.o.v." (Italics added.) Defendants "have refused so to stipulate."

[1] Under section 629 of the Code of Civil Procedure, since plaintiff appealed from the order granting a new trial, the other order denying judgment notwithstanding the verdict then became reviewable, "fully and completely," as said in Estate of Green, hereinbefore cited, although in itself it was not appealable. Therefore, technically, as stated in the Green case, the defendants' appeal from the order denying the motion for judgment notwithstanding the verdict, should be dismissed, since it was neither necessary nor proper.

The Green case might well be decisive of the present controversy were it not for the fact under rule 3a, cited by defendants, the latter had the undoubted right to file notice of appeal from the original judgment, as was done in this case. After the defendants had exercised this right, which it may be noted, was instituted and called into being by the plaintiff's own appeal, it hardly lies within the plaintiff's power to defeat such right by the technicality of offering to dismiss the first appeal. Certainly the defendants had a right to assume that plaintiff's appeal was in good faith, and then to protect defendants' rights by filing an appeal from the original judgment as provided in rule 3a

As said in defendant's memorandum, the interpretation of the law as propounded by plaintiff "would be manifestly unfair," after defendants' reliance on plaintiff's appeal and the expenditure of large sums of money in procuring transcripts [116 Cal. App. 2d 8] of the testimony, etc., necessary for an appeal on the merits. Moreover, an appeal from the original judgment against defendants will necessarily present any question of sufficiency of evidence or possible judicial errors in the trial itself, and in that respect benefit both parties by furnishing a final determination of the rights involved.

Defendants' attempted appeal from the order denying a judgment non obstante veredicto is dismissed without prejudice to the defendants' appeal from the original judgment.

White, P. J., and Drapeau, J., concurred.