MONTGOMERY WARD & CO. V. DUNCAN, 311 U. S. 243 (1940)

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U.S. Supreme Court

Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940)

Montgomery Ward & Co. v. Duncan

No. 30

Argued November 12, 1940

Decided December 9, 1940

311 U.S. 243


1. A defendant who moved the District Court successfully for judgment non obstante veredicto and who thereupon urged that, because of the granting of the judgment, his alternative motion (on other grounds) for a new trial had passed out of the case, did not thereby elect to stand upon his motion for judgment alone and abandon his right to have the motion for new trial decided by the District Court should his judgment be reversed on appeal. P. 311 U. S. 249.

2. Under Rule 50(b) of the Rules of Civil Procedure for the District Courts, the granting of a motion for judgment non obstante veredicto does not effect an automatic denial of an alternative motion for a new trial. Pp. 311 U. S. 249-250.

3. The provision of the rule that "A motion for a new trial may be joined with this motion [for judgment non obstante veredicto,] or a new trial may be prayed for, in the alternative" -- does not confine the trial judge to an initial choice of disposing of either motion to the exclusion of the other. P. 311 U. S. 251.

4. Rule 50(b) should be so administered as to accomplish all that is permissible under its terms in avoidance of delay in litigation. P. 311 U. S. 253.

5. Under Rule 50(b), where there is a motion for judgment non obstante veredicto and in the alternative for a new trial because of trial errors and matters appealing to the judge's discretion, the judge should rule on the motion for judgment, and, whatever the ruling thereon, should also rule on the motion for new trial, indicating the grounds of his decision. If he grants judgment non obstante veredicto and denies a new trial, the party who obtained the verdict may appeal from that judgment, and the appellee may cross-assign error to rulings of law at the trial, so that, if the appellate court reverses the order for judgment non obstante veredicto, it may pass on the errors of law which the appellee asserts nullify the judgment on the verdict. P. 311 U. S. 253.

6. Where the District Court granted judgment non obstante veredicto to the defendant, but failed to pass upon defendant's motion in the alternative fr a new trial, and the granting of the judgment chanrobles.com-red

Page 311 U. S. 244

non obstante veredicto was adjudged erroneous and reversed on appeal, held, that in view of the novelty of the procedure under Rule 50(b) and other circumstances, the cause should be remanded to the District Court with directions to hear and rule upon the motion for a new trial. P. 311 U. S. 254.

108 F.2d 848 modified.

Certiorari, 309 U.S. 650, to review a judgment of the court below which reversed a judgment of the District Court for the defendant entered non obstante veredicto and remanded the case with instructions to the District Court to enter judgment on the verdict in favor of the plaintiff.


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