Page:North Dakota Reports (vol. 48).pdf/607

 MERCHANTS’ STATE BANK OF VELVA, NORTH DAKOTA, a corporation, Respondent, v. S. S. STREEPER, Appellant.

Bills and notes—judgment—verdict for defendant held not supported by evidence; judgment notwithstanding verdict held proper, although no motion for directed verdict previously made.

This is an action on a promissory note. The defense was want of consideration. The case was tried to a jury. No motion for a directed verdict was made by either party. The jury returned a verdict in favor of the defendant. Thereafter the plaintiff moved in the alternative for judgment notwithstanding the verdict or for a new trial. The trial court ordered judgment notwithstanding the verdict in plaintiff’s favor. The evidence is examined and it is held that the verdict in favor of the defendant was not supported by the evidence and that the trial court was correct in setting the verdict aside and in ordering judgment notwithstanding the verdict.

From a judgment of the district court of Ward County entered pursuant to an order for judgment notwithstanding the verdict, defendant appeals.

Affirmed.

Nestos & Herrigstad, for appellant.

The court erred in ordering that judgment in favor of the defendant be vacated and set aside and that the plaintiff have judgment notwithstanding the verdict since no motonmotion [sic] for a directed verdict was made at any time during the trial of the action. 12 N. D. 74; 17 N. D. 310. The court also erred in holding, as the court must have done, that there was not sufficient evidence to sustain the verdict rendered by the jury. Marquardt v. Huebner, 80 N. W. 616; Bragg v. Railway Co. 83 N. W. 511; Merritt v. Railway Co. 84 N. W. 321; 11 N. D. 456; Nelson v. Grundahl 12 N. D. 130; Richmore v. Andrews & Gage Elev. Co. 11 N. D. 453.

The court erred in failing to deny plaintiff’s motion for a new trial and for judgment notwithstanding the verdict. Jones v. Ruff, 12 N. D.