25-1315.02. Motion for directed verdict at close of evidence; effect; filing before entry of judgment; treatment; motion to set aside verdict or judgment; power of court.

Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. No later than ten days after the entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the moving party's motion for a directed verdict. If the motion is filed after the announcement of a verdict but before the entry of judgment, it shall be treated as filed after the entry of judgment and on the day thereof. If a verdict is not returned, within ten days after the jury is discharged a party who has moved for a directed verdict may move for judgment in accordance with the moving party's motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If judgment was entered, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

Source

Annotations

1. Duty of court

2. Allowance of motion

3. Denial of motion

4. Miscellaneous

1. Duty of court

Trial court had authority to vacate judgment it had entered for plaintiff after trial to the court, and to then enter judgment for defendants on motion couched in terms of this section. Woodmen of the World Life Ins. Soc. v. Peter Kiewit Sons' Co., 196 Neb. 158, 241 N.W.2d 674 (1976).

In passing on motion, court is required to re-examine the entire material evidence. Wagoun v. Chicago, B. & Q. R. R., 155 Neb. 132, 50 N.W.2d 810 (1952); In re Estate of Bingaman, 155 Neb. 24, 50 N.W.2d 523 (1951).

Whether a judgment will be directed or new trial granted is matter of judicial discretion. In re Estate of Coons, 154 Neb. 690, 48 N.W.2d 778 (1951).

Where motion to dismiss was made on ground that evidence did not sustain a cause of action, this section applied. Wax v. Co-Operative Refinery Assn., 154 Neb. 42, 46 N.W.2d 769 (1951).

This section deals with the powers of the trial court. Krepcik v. Interstate Transit Lines, 153 Neb. 98, 43 N.W.2d 609 (1950).

2. Allowance of motion

This section authorizes entry of a judgment notwithstanding the verdict if the appropriate motion is made within ten days after reception of the verdict to be set aside; a trial court should direct a verdict only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. Getzschman v. Miller Chemical Co., 232 Neb. 885, 443 N.W.2d 260 (1989).

Where evidence showed that plaintiff was damaged but not the extent or amount thereof, grant of alternative motion for new trial rather than entry of judgment notwithstanding the verdict was proper. Wylie v. Czapla, 168 Neb. 646, 97 N.W.2d 255 (1959).

Judgment notwithstanding the verdict should be granted where motion for directed verdict at close of all of the evidence should have been sustained. Weston v. Gold & Co., 167 Neb. 692, 94 N.W.2d 380 (1959).

A proper motion for a directed verdict is a necessary condition precedent to a motion for judgment notwithstanding the verdict. Allied Building Credits, Inc. v. Damicus, 167 Neb. 390, 93 N.W.2d 210 (1958).

When a party has filed a motion for judgment notwithstanding the verdict and in the alternative for a new trial, the granting of the motion for judgment notwithstanding the verdict operates as a denial of the motion for new trial. Armer v. Omaha & C. B. St. Ry. Co., 153 Neb. 352, 44 N.W.2d 640 (1950).

If a motion for directed verdict made at the close of all of the evidence should have been sustained, it is the duty of the court on motion for judgment notwithstanding the verdict to set same aside and render judgment pursuant to the motion. Hamilton v. Omaha & C. B. St. Ry. Co., 152 Neb. 328, 41 N.W.2d 139 (1950).

When proper motion is made and overruled, court is empowered to set aside verdict and enter judgment in accordance with motion. Sohler v. Christensen, 151 Neb. 843, 39 N.W.2d 837 (1949); Patrick v. Union Central Life Ins. Co., 150 Neb. 201, 33 N.W.2d 537 (1948); In re Estate of Farr, 150 Neb. 67, 33 N.W.2d 454 (1948).

3. Denial of motion

The prerequisite motion for directed verdict made at the close of all the evidence was not made where plaintiff failed to renew her motion for directed verdict after defendant presented evidence on surrebuttal. Spulak v. Tower Ins. Co., 251 Neb. 784, 559 N.W.2d 197 (1997).

A motion for judgment notwithstanding the verdict may not properly be sustained in the absence of a motion for a directed verdict made at the close of all the evidence, which motion should have been sustained because of a want of evidence. Palmtag v. Gartner Constr. Co., 245 Neb. 405, 513 N.W.2d 495 (1994).

Motions for directed verdict and for judgment notwithstanding inability of jury to agree on a verdict, were properly denied in view of the evidence on the record. Danielsen v. Richards Mfg. Co., Inc., 206 Neb. 676, 294 N.W.2d 858 (1980).

In the absence of a motion for directed verdict, a motion for judgment notwithstanding the verdict may not properly be sustained. Harris v. Pullen, 169 Neb. 298, 99 N.W.2d 238 (1959).

Where trial court denies motion for new trial and makes no ruling on motion for judgment notwithstanding the verdict, the denial operates for both. Lund v. Holbrook, 153 Neb. 706, 46 N.W.2d 130 (1951).

4. Miscellaneous

Pursuant to this section, when a jury is unable to return a verdict and is discharged, a party properly preserves for appeal only those issues stated in its motion for judgment notwithstanding the verdict that it also asserted in its motion for directed verdict. Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004).

This section authorizes an appeal from the denial of a judgment notwithstanding the verdict after the jury has been discharged as the result of an inability to reach a verdict. Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000).

This section authorizes an appeal from the denial of a judgment notwithstanding the verdict after the jury has been discharged as the result of an inability to reach a verdict. Critchfield v. McNamara, 248 Neb. 39, 532 N.W.2d 287 (1995).

A motion for judgment notwithstanding the verdict is not available in criminal proceedings in Nebraska state courts. State v. Miller, 240 Neb. 297, 481 N.W.2d 580 (1992).

This section authorizes the renewal of a party's previous directed verdict motion in cases where a jury is unable to reach a verdict and is discharged for that reason. Ditloff v. Otto, 239 Neb. 377, 476 N.W.2d 675 (1991).

A motion for a directed verdict is an absolute prerequisite to a motion for judgment notwithstanding the verdict. Lockhart v. Continental Cheese, Inc., 203 Neb. 331, 278 N.W.2d 604 (1979); Pearson v. Schuler, 172 Neb. 353, 109 N.W.2d 537 (1961); Springer v. Henthorn, 169 Neb. 578, 100 N.W.2d 521 (1960); Kohl v. Unkel, 163 Neb. 257, 79 N.W.2d 405 (1956); In re Estate of Kinsey, 152 Neb. 95, 40 N.W.2d 526 (1949).

The procedure hereunder is limited to civil proceedings. State v. Torrence, 192 Neb. 720, 224 N.W.2d 177 (1974).

Section 25-1315.03, provides that certain orders are appealable, but it is not exclusive. Edquist v. Commercial Sav. & Loan Assn., 191 Neb. 618, 217 N.W.2d 82 (1974).

Motions for directed verdict following all evidence and, after mistrial, for judgment for defendant or dismissal of petition were proper. Giangrasso v. Schimmel, 190 Neb. 228, 207 N.W.2d 517 (1973).

Party may seek a new trial without asking for judgment notwithstanding the verdict. Guynan v. Olson, 178 Neb. 335, 133 N.W.2d 571 (1965).

This section constitutes a special statutory procedure. Central Sur. & Ins. Corp. v. Atlantic Nat. Ins. Co., 178 Neb. 226, 132 N.W.2d 758 (1965).

Under specified conditions, order granting a new trial is an appealable order. Otteman v. Interstate Fire & Cas. Co., Inc., 171 Neb. 148, 105 N.W.2d 583 (1960).

Motion for new trial is not always essential to review on appeal. Hungerford v. Knudsen, 171 Neb. 125, 105 N.W.2d 568 (1960).

Where requisite motions have been made, order denying a new trial is an appealable order. Bell v. Crook, 168 Neb. 685, 97 N.W.2d 352 (1959).

Act applies where proper motions are made even though jury does not agree on verdict and is discharged. In re Estate of Fehrenkamp, 154 Neb. 488, 48 N.W.2d 421 (1951).

Party is required not only to timely make motion for directed verdict but thereafter to timely file motion for judgment notwithstanding the verdict. Pahl v. Sprague, 152 Neb. 681, 42 N.W.2d 367 (1950).

The purpose of the act, of which this section is a part, was to simplify and expedite the final disposition of litigation. Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533 (1949).