Stewart v. Oregon Short Line Railroad

Utah Supreme Court

Stewart v. Oregon Short Line Railroad

117 P. 465, 39 Utah 375, 1911 Utah LEXIS 55

Utah Supreme Court·Decided July 21, 1911·No. No. 2243·Published·Cited by 3 cases

Opinion

STRAUP, J.

This was an action brought by appellant to recover damages for .alleged personal injuries. Upon the evidence adduced by both‘parties the court, on respondent’s motion, directed a verdict in its favor. No exception was taken or reserved to the ruling. The appellant seeks to have it reviewed on the theory that under the statute, such a ruling is deemed excepted to.

[376] The statute (section 3283, C. L. 1907) provides that “the verdict of tbe jury; the final decision in an action or proceeding,-; an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking 1 out a pleading or a portion thereof, refusing a continuance ; an order made upon ex parte applications; and an order or decision made in the absence of a party — are deemed to have been excepted to.” This statute is identical with section 647 of the California Code of Civil Procedure. Under that statute the Supreme Court of California held that it is thoroughly settled in that state that a motion for nonsuit will not be reviewed, where no exception was taken or reserved to the ruling. (Malone v. Beardsley, 92 Cal. 150, 28 Pac. 218; Craig v. Hesperia Land & Water Co., 107 Cal. 675, 40 Pac. 1057; Hanna v. De Garmo, 140 Cal. 172, 73 Pac. 830.) We do not see why a different rule should be adopted with respect to a motion to direct a verdict. While the granting of the one is a bar to another action, and the granting of another is not, still the effect of both, when granted, is to take the case from the jury, and to end the trial and terminate the action.

The ruling not being reviewable, because no exception was taken thereto, and no other question being presented, it follows that the judgment of the court below must be, and it accordingly is, affirmed, with costs.

FRICK, C. J., and McCARTY, J., concur.

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STRAUP, J.

This was an action brought by appellant to recover damages for .alleged personal injuries. Upon the evidence adduced by both‘parties the court, on respondent’s motion, directed a verdict in its favor. No exception was taken or reserved to the ruling. The appellant seeks to have it reviewed on the theory that under the statute, such a ruling is deemed excepted to.

[376] The statute (section 3283, C. L. 1907) provides that “the verdict of tbe jury; the final decision in an action or proceeding,-; an interlocutory order or decision finally determining the rights of the parties, or some of them; an order or decision from which an appeal may be taken; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking 1 out a pleading or a portion thereof, refusing a continuance ; an order made upon ex parte applications; and an order or decision made in the absence of a party — are deemed to have been excepted to.” This statute is identical with section 647 of the California Code of Civil Procedure. Under that statute the Supreme Court of California held that it is thoroughly settled in that state that a motion for nonsuit will not be reviewed, where no exception was taken or reserved to the ruling. (Malone v. Beardsley, 92 Cal. 150, 28 Pac. 218; Craig v. Hesperia Land & Water Co., 107 Cal. 675, 40 Pac. 1057; Hanna v. De Garmo, 140 Cal. 172, 73 Pac. 830.) We do not see why a different rule should be adopted with respect to a motion to direct a verdict. While the granting of the one is a bar to another action, and the granting of another is not, still the effect of both, when granted, is to take the case from the jury, and to end the trial and terminate the action.

The ruling not being reviewable, because no exception was taken thereto, and no other question being presented, it follows that the judgment of the court below must be, and it accordingly is, affirmed, with costs.

FRICK, C. J., and McCARTY, J., concur.

Stewart v. Oregon Short Line Railroad, 117 P. 465, 39 Utah 375, 1911 Utah LEXIS 55 (Utah 1911).

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