Neely v. Martin K. Eby Construction Company, Inc.

PETITIONER:Neely
RESPONDENT:Martin K. Eby Construction Company, Inc.
LOCATION:Gila County Youth Detention Center

DOCKET NO.: 12
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 386 US 317 (1967)
ARGUED: Jan 16, 1967 / Jan 17, 1967
DECIDED: Mar 20, 1967

Facts of the case

Question

  • Oral Argument – January 16, 1967
  • Audio Transcription for Oral Argument – January 16, 1967 in Neely v. Martin K. Eby Construction Company, Inc.

    Audio Transcription for Oral Argument – January 17, 1967 in Neely v. Martin K. Eby Construction Company, Inc.

    Earl Warren:

    Number 12, Sandra Lee Neely, etcetera petitioner versus Martin K. Eby Construction Company.

    Mr. Kripke, you may continue your argument.

    Kenneth N. Kripke:

    Mr. Chief Justice, may it please the Court.

    There’s a vast distinction between review of a record by a trial judge and review on appeal of a code record by an appellate court and as I started to say in the brief time available yesterday, it would appear that that is what the Seventh Amendment is all about.

    There is one line of cases running from Slocum versus the New York Life Insurance Company down to Galloway which was immediately postwar, I believe which examined into the effect of the Seventh Amendment on appellate court review and particularly on the power of the appellate court to reverse and dismiss as against the party who had won the verdict below.

    In the Slocum case, the Court was construing Pennsylvania law and it was said in that case, I think very flatly, that the appellate court has power to review the denial of a judgment notwithstanding the verdict but that the Seventh Amendment precludes the direction of judgment by the appellate court rather than the ordering of a new trial.

    The Supreme Court of the United States in that case eliminated, modified the judgment by eliminating the direction to enter judgment and substituted direction for a new trial.

    Following that case very closely was a Federal Employers’ Liability Act case, the Young case at volume 232 of the official reports and that case following Slocum and citing Slocum said that even though there is no evidence of negligence for the jury a new trial should be granted rather than the dismissal or entry of judgment.

    Then came the Redman case at 295 of the reports.

    Justice — Mr. Justice Van Devanter wrote that opinion as he did in the earlier case of Slocum some 20 years before and in that case which construed New York law, Mr. Justice Van Devanter said that the Court of Appeals did have the power to reverse as against the verdict winner below and to enter judgment against him.

    The Slocum case was distinguished in the Redman case on the ground of the insufficiency of — on the ground that the insufficiency of evidence question was not reserve in Slocum by the verdict loser as it was in Redman.

    Then followed the Kennedy case, Aetna Insurance Company versus Kennedy which followed Slocum rather than Redman and then we had of course the — what I believe was a very important case of Galloway which was construing not the power of an appellate court but the power of the trial judge with reference to the entry of judgment notwithstanding the verdict.

    And there, even though it was the power of a trial judge which was at stake three justices dissented in that case.

    In that case, the dissent pointed out that in the English common law as reported in Parsons versus Bedford.

    There was no right or no power rather in an appellate court to reverse and dismiss a verdict winner out of court that the most that could be done was to grant a new trial.

    And that deserves some discussion because in the Redman case, the Court said there was that power and we discovered in reading the English common law cases that were cited in Redman that actually what was happening at the common law was this, that the nisi prius judges would go out on the circuit and try these cases with the juries would reserve difficult questions of law, would bring these questions back to the Court en banc at Westminster and obtain opinions from the group of judges, from the brother judges en banc.

    This was similar I think to a procedure where a judge on a trial level would call back his brother judges into chambers and say, “help me out on this problem.”

    There was always the contact of one judge, always the contact of one judge on this reviewing body who was in the courtroom, who heard the witnesses, who saw the gestures if there was a blackboard, he saw the writing on the blackboard and he had the personal primary contact with that case.

    In fact, in two of those cases Lord Mansfield was a trial judge and then he also was the judge who wrote the opinion.

    I’m talking about the common law cases.

    Therefore, I feel that insofar as Redman indicate that there was a power to common law for a — an appellate court to review a code record, I honestly think that Mr. Justice Van Devanter was wrong.

    Earl Warren:

    Well, what do you do with Rule (50) (d)?

    Kenneth N. Kripke:

    Yes, Your Honor.

    The postwar cases deal then with Rule 50 and I will come down to that.

    There were — there are four cases under Rule 50.

    There are no cases yet under Rule 50 (d) of course but there are four cases under Rule 50, the Cone case, the Globe Liquor case, the Weade versus Dichmann case and finally the Johnson case that I know of.

    In each of which, this Court protected the verdict winner in one way or another by allowing a new trial in each of these.

    Now, in none of these was any constitutional question reached except that in the Johnson case, the 344 of the U.S. reports, the Court did note that there was discussion of the Seventh Amendment in Redman and in Slocum and it mentioned that in passing but actually none of those cases dealt with the fundamental question.

    I believe in reading — it’s my reading of the Cone, Globe Liquor, Weade, and Johnson all of these that what the Court was saying was that we are going to protect the rights of the verdict winner below.

    Now, we get to Rule 50 (c) and 50 (d) as they were brought in to the law in 1963.

    Kenneth N. Kripke:

    Rule 50 (c) says in effect that if the verdict winner loses on the motion for judgment notwithstanding, which is made by the other party at the trial level, then he may file a motion for a new trial within 10 days of the entry of the judgment notwithstanding the verdict.

    Rule 50 (d) says that if he wins that is if the verdict winner is upheld by the trial judge on the — as against the opposing party’s motion for judgment notwithstanding and motion for new trial then he may as appellee cite grounds why if by some stroke of lightning the Court of Appeals should reverse, he may cite grounds as appellee as to why he should be permitted to remain in court.

    Now, this assumes a great deal of foresight.

    Here’s the situation at that point as a practical matter.

    The plaintiff has — well, let’s say the plaintiff because in our situation we’re the plaintiff, it’s easier for me to think that way.

    The plaintiff, the verdict winner has the verdict at that point.

    He has survived the motion for judgment notwithstanding the verdict.

    He has survived the motion for new trial and he has a verdict which he thinks is pretty good.

    Now, as a practical matter he can order additional parts of the record and this no expense to his client and bring out a few or a great many errors which can be briefed and researched that additional expense on time and present a full blown brief on his side of the case which he’s already won to the Court of Appeals in the off — in the possibility and the possible event that by though he may be he didn’t have the verdict.

    Maybe he’s going to lose it.

    It seems to me that this — if that is the interpretation of Rule (d) then you’re better off under Rule 50 (c).

    You’re better off to have the trial judge grant the judgment notwithstanding the verdict against you because then you got 10 days within which to file your motion.

    You’re better off than under Rule 50 (d) where you’ve got to anticipate all these things happening.

    Abe Fortas:

    In this case was the entire trial record before the Court of Appeals?

    Kenneth N. Kripke:

    No, Your Honor.

    Only the testimony of four witnesses, I believe it was all of the liability testimony at that time was before the Court of Appeals.

    Abe Fortas:

    All the testimony on the question of liability?

    Kenneth N. Kripke:

    Yes, sir.

    I’m sure it was.

    Abe Fortas:

    And since the evidence on the question of damages — amount of damages that was not certified.

    Kenneth N. Kripke:

    That’s right.

    Now, —

    Earl Warren:

    Can we take this Rule 50 (d) on its face without considering any constitutional question does the Court of Appeals have power to do what it did here?

    Kenneth N. Kripke:

    No, Your Honor, I don’t think so even without the Constitution.

    It may not have that power —

    William O. Douglas:

    If the two questions that we put to you, you think entrusted the rule?

    Kenneth N. Kripke:

    Yes sir.

    Yes.

    Well, there was also the question — that’s right.

    The question that was certified by the court with those, with reference to the rule.

    William O. Douglas:

    You haven’t discussed the rule yet?

    Kenneth N. Kripke:

    Well, certainly may it please with Court with reference to Rule 50 (d) it would appear that if that is the construction of the Court we have less right under Rule 50 (d) unless we say well we’ve got to go back to Rule 50 (c).

    Now, in this case the Court of Appeals dismissed us out of Court.

    They didn’t return this case for a ruling on the judgment n.o.v. or they didn’t even say that for a judgment in favor of the plaintiff — in favor of the defendant.

    They simply dismissed us out of Court which permitted us no opportunity to go back in under Rule 50 (c) even and get 10 more days within which to follow motion for new trial on our own ground.

    It seems to me that if that is what Rule 50 (d) means, then the lawyers of this country have learned a great deal because frankly, I don’t know of any case and I don’t know of anybody in this entire courtroom does know of any case where any winning party, where any verdict winner has filed a conditional motion for new trial or cited errors on appeal which would redone in his own favor.

    In this case, the record shows at least the testimony of two or perhaps three witnesses which reference to opinions as to the scalpel thing which we would not permitted to put any evidence and I suppose the question with reference to that is have we failed to protect our record by failing to point to that among other things in the appeal.

    William O. Douglas:

    Well, I gather you’re not going to discuss the rule and its history, meaning and background.

    Kenneth N. Kripke:

    Well, sir I believe I think the Rule —

    William O. Douglas:

    Could have been any questions if we took the case on, you know and your time (Voice Overlap) —

    Kenneth N. Kripke:

    May it please the Court Mr. Justice Douglas.

    I think that the Court granted a cert on the question I post just as well as the two questions —

    William O. Douglas:

    Would you open the record page 96.

    Kenneth N. Kripke:

    Yes, sir.

    William O. Douglas:

    We wanted particularly relied on those two questions.

    Kenneth N. Kripke:

    Yes.

    Your Honor, it does say in addition to all of the questions presented by the petition.

    I feel Your Honor that these rules cannot be construed so as to in any way destroy the constitutional provision Amendment Seven which has to be paramount.

    So that it has to be construed within the bounds of Amendment Seven.

    Now, Amendment Seven does not —

    Hugo L. Black:

    Suppose you assumed that the Constitution permits it, why do say that rule denies it?

    Why do you say that this rule give the Court of Appeals a right to decide for its sentence when it had never heard the evidence and do nothing about it whether the other side was entitled to have his case tried over —

    Kenneth N. Kripke:

    Yes sir.

    Hugo L. Black:

    — rather than dismiss?

    Yes.

    I don’t see how the rules can possibly permit the Court of Appeals to do that.

    I just don’t see how it possibly can because when it is doing is denying the right of trial by jury.

    The Court of Appeals in this case may it please the Court, in reviewing in great detail —

    William O. Douglas:

    That a constitutional argument, some of us will be interested in the history of the rule and assuming you’re wrong in the Constitution.

    Kenneth N. Kripke:

    Yes.

    Kenneth N. Kripke:

    Well, Your Honor I think the rules are to provide the Courts of Appeals with a vehicle by which, the machinery by which and the procedure by which a review can be done.

    There is a situation for instance a Court of Appeals could dismiss under Rule 50 in this situation after a verdict winner wins the fourth trial but in this situation where — I want to say there is jurisdictional question which is properly preserved either as to a subject matter or to in person.

    Then, I think it’s true that the Court of Appeals could reverse and dismiss but in that case what you got, I think that the Court of Appeals could reverse and dismiss if there is a jurisdictional situation which is properly preserved in the Court of Appeals.

    Hugo L. Black:

    What I asked you discuss what whether the rule permits them to do that very thing, some others doubt it, they refused.

    Kenneth N. Kripke:

    I see.

    Well, I think Your Honor in that situation —

    Hugo L. Black:

    You haven’t discussed the rule.

    Kenneth N. Kripke:

    Well, in that situation, Your Honor, I believe the rule would permit only in that limited situation where the verdict winner would still be entitled he hasn’t lost anything because he has not been dismissed with prejudice in that situation.

    William O. Douglas:

    But you see if you don’t go into the history of the rule or to the Committee’s reports to the debates?

    Kenneth N. Kripke:

    Well, yes Your Honor, I think —

    William O. Douglas:

    (Voice Overlap) you need us pretty much where we were when you took this case.

    Kenneth N. Kripke:

    Yes.

    Well, I’m sorry Your Honor.

    Certainly, with reference to Rule 50 (d) the Advisory Committee said this doesn’t settle all the questions and I quoted that in the brief.

    William O. Douglas:

    Well, that’s not very helpful to us.

    Kenneth N. Kripke:

    Well, Your Honor I don’t know how to proceed on that point any further than I have.

    I believe that the — I’m sure that the purpose of Rule 50 (c) and (d) was to try to iron out these problems which had been plaguing the Court, which have been plaguing the bench and bar with reference to the application of the Constitution to the appellate power.

    But I don’t see how by appellate — by rule we can change the constitutional scope in anyway.

    May I reserve the rest of my time?

    Earl Warren:

    You may.

    Mr. Mott.

    John C. Mott:

    Mr. Chief Justice, may it please this Honorable Court.

    I believe there are three issues that are before this Court of this time.

    First issue being does the Court of Appeals have the power to do what it did in this case namely to reverse and remand for dismissal and as counsel brings it out in his brief that involves an interpretation of the Seventh Amendment.

    The second, if it please the Court is, was the exercise of this power by the Court of the Appeals properly requested by the parties and I submit that the involves an interpretation of the Cone case and Globe case and the Johnson case.

    And the third, if it please the Court, the third question was the petitioner, the plaintiff and the trial court deprived of any right to seek a new trial by virtue of what the Court of Appeals did and that I submit and it requires an interpretation of Rule 50 (d).

    Now, on broad outline I answer these three questions, first that the Court of Appeals definitely does have the power to do what it did by virtue of the judicial code which we cited in the brief and also under the rule.

    I also submit that the exercise of this power by the Court of Appeals in this case was properly requested and lastly, I say that the petitioner was not deprived of any right to seek a new trial in this case by virtue of what the Court of Appeals did.

    Hugo L. Black:

    May I try to state to you what I think the issue is that we gave you to argue?

    John C. Mott:

    Yes, sir.

    Hugo L. Black:

    There’s a question after a person has a case reversed.

    Frequently, there are reasons why the situation was said that he should’ve been granted a new trial rather than have his case dismissed.

    The cases before this rule was amended last time had expressed that right as being guaranteed by the rule that the Court of Appeals did not have the right or power to grant a new trial or rather dismiss the case.

    The question is whether the rule and the present form does deny that Court, that power to the Circuit Court of Appeals and that’s the only question we have presented.

    The constitutional question is not presented.

    John C. Mott:

    Alright sir.

    I’ll try to answer that in the best way I can.

    The case is which the Court requested us to look into and brief the Cone case, Gold and Weade as I read them were decided before the adoption of Rule 50 (d).

    Hugo L. Black:

    Before the adoption of Rule 50 (d)?

    John C. Mott:

    (d).

    Hugo L. Black:

    (d)?

    John C. Mott:

    Yes.

    Hugo L. Black:

    50 (d).

    Alright.

    John C. Mott:

    Now, in each on of those cases, if it please the Court, the defendant in the trial court after an adverse jury verdict was received moved for a new trial.

    In the Johnson case, they moved to set aside the judgment and this Court held that that was a motion for a new trial.

    In each of those three cases they did not move for judgment notwithstanding the verdict.

    This Court held in each one of those cases that because no motion for judgment notwithstanding the verdict was made before the trial court that the Court of Appeals on appeal did not have the power to reverse and dismiss.

    Now, my interpretation, in my humble opinion, if it please the Court, to those three cases is that the correlative must be true of that proposition namely that if judgment notwithstanding the verdict is requested at the trial court level then the Court of Appeal does have the power to reverse and dismiss.

    Hugo L. Black:

    Undoubtedly, the district judge has that power but the district judge didn’t have that power before the amendment unless that motion was made.

    What we are talking about is the power of the Circuit Court of Appeals to direct the dismissal of the case rather than dissent it back to the district judge to exercise his discretion has been indicated in the former cases, the Court of Appeals must do and would abstain from dismissing the case.

    John C. Mott:

    Well, I submit, if it please the Court, that the judicial code which is cited in the brief and which we quote the verbatim clearly authorizes what the Circuit Court did — the Court of Appeals did in his case.

    Hugo L. Black:

    Read the sentence that authorized the case.

    John C. Mott:

    Now, on page three of my answer brief, I think it’s also in the brief on the — in our position to the issuance of the writ.

    The Supreme Court or any other court of appellate jurisdiction may affirm modify, vacate, set aside, or reverse any judgment, decree or order of court lawfully brought before review and may remand the cause and direct the entry of such appropriate judgment decree or order or require such further proceedings to be had as maybe just under the circumstances.

    Hugo L. Black:

    Now, do you find anything like that statement in Rule 50?

    John C. Mott:

    No, sir.

    Hugo L. Black:

    It is not there, is it?

    John C. Mott:

    No, sir.

    Hugo L. Black:

    Rule 50 and that rule was in existence, that provision was in existence at the time the Cone case and the other cases were decided.

    John C. Mott:

    This — on the Cone?

    Hugo L. Black:

    Well, certainly.

    John C. Mott:

    No, sir.

    I don’t think so.

    As I understand it Cone was decided in 1946 in the code that I have referred to was decided or was enacted in 1948.

    Hugo L. Black:

    You mean it had never been the rule up to that time?

    That had never been rule up to that time?

    John C. Mott:

    No, sir.

    It’s a provision.

    Hugo L. Black:

    That was a provision?

    John C. Mott:

    Yes, sir.

    Hugo L. Black:

    But it left the language as well.

    As I read Rule 50 (d) says to get you down specifically to the point that the Court — appellate court may on motion have a motion grant on new trial.

    John C. Mott:

    Now, my interpretation to that and I certainly don’t mean to be facetious in this at all Mr. Justice Black is this, that the Court of Appeals has the basic right under the judicial code as it’s always had to reverse and affirm, modify, vacate and so forth.

    Before Rule 50 (d) was adopted, we had Rule 50 (c) which stated that if a case is reversed on appeal that — well, no Rule 50 (c) said, that if the motion for judgment notwithstanding the verdict was granted below then the trial court could entertain the motion for new trial 10 days thereafter.

    Then, we come along with Rule 50 (d) which in my opinion if it please the Court is not a rule from which the Court of Appeals obtains the raw power to do what it did but is merely permissive insofar is the Court of Appeals is concern.

    In other words, as I read it, it says that in addition to what the Court of Appeals has the right to do generally under Rule 50 (d) nothing prohibits the Court of Appeals from granting a new trial if it’s so desire.

    In other words, I take that is not the words of restriction insofar as the Court of —

    Hugo L. Black:

    Does it say, to deny a new trial?

    John C. Mott:

    I think that’s inherent and it does not say the specific —

    Hugo L. Black:

    Does it say it?

    John C. Mott:

    Sir?

    Hugo L. Black:

    Does it say it?

    John C. Mott:

    No, sir.

    Hugo L. Black:

    Does not say it in the Cone case the other cases have filed, discussed their power to the Court of Appeals specifically stable but under the law and under the rule then why they could not deny a new trial, they had to let that be acted on, I mean deny a new trial that had to be acted on by the District Court.

    Now, how do you get around that principle is still applying to the Rule 50 (d)?

    John C. Mott:

    My explanation to that Mr. Justice Black is this, that if we take the two rules (c) and (d) to get which we must in this case because they were both enforced when this case was tried.

    Rule 50 (c) takes the situation where a motion for judgment notwithstanding the verdict is denied — is granted.

    In that case, if the loser in that case is the verdict winner wants a new trial then he has under that rule the right as well as the responsibility of asking the trial court for the new trial 10 days after the judgment of notwithstanding the verdict.

    If the motion for judgment notwithstanding the verdict is denied as it was in this case so long with the motion for new trial if it is denied as I read Rule 50 (d), it says that any attempt on the part of the verdict winner to seek a new trial must be as “appellee” and although they don’t say “appellee” in the Court of Appeals I think we can assume that that is the only court in which in the federal system and which a party is called an “appellee.”

    John C. Mott:

    So, they say as “appellee” he may urge grounds on which he would be entitled to a new trial.

    In other words, if you win the motion for judgment notwithstanding the verdict you have to seek your new trial in the Court of Appeals under Rule 50 (d).

    If you lose the motion for not judgment notwithstanding the verdict you can request new trial under Rule 50 (c) from the District Court.

    Then the rule goes on to say if it please the Court that nothing in Rule 50 (d) shall be denied the Court of Appeals the right to grant a new trial —

    Hugo L. Black:

    To grant?

    John C. Mott:

    Yes, sir.

    But I don’t think it —

    Hugo L. Black:

    If you read Cone and the other cases — have you read them?

    John C. Mott:

    Yes sir.

    Yes sir, I have.

    Hugo L. Black:

    They were based largely on the fact that case tried by district judge after a judgment is rendered one way or the other may have been tried in such way that its claim had the law been different or had the circumstances been different.

    A new trial would’ve been just right how the defendant who lost the case as it was.

    And the philosophy of that case was that it was desirable that that discretion be exercised by the district judge that which familiar with the case and not by the Court of Appeals.

    What do you find in the rule that rejects the adoptions?

    What do you find (Voice Overlap) —

    John C. Mott:

    I think, Your Honor —

    Hugo L. Black:

    What do you find that indicates they wanted to change that doctrine?

    John C. Mott:

    Yes, sir.

    In Rule 50 (d), I think it says that —

    Hugo L. Black:

    Why they have said — you think where they said read a new trial they really meant to deny–

    John C. Mott:

    (Voice Overlap) it says nothing.

    To me, if it says that nothing prohibits the Court of Appeals the right to grant a new trial.

    I don’t think that that insinuates the court —

    Hugo L. Black:

    There have been a history of that rule.

    What about there was a decided distinction between the two granting and denying?

    John C. Mott:

    Certainly there was.

    It all goes back to the old proposition that grew up for many years ago with regard to the questions of law being purports to determine and questions of fact for juries.

    Of course the — no one has ever challenged the power of the trial court to decide a case on questions of law and direct the verdict to dismiss the case and so forth.

    Hugo L. Black:

    That’s right.

    That’s correct.

    John C. Mott:

    Then they used the device of reversing that position until after the trial was had so they could —

    Hugo L. Black:

    Reserving it on the part of the District Court?

    John C. Mott:

    Yes sir.

    In Slocum or Redman it said that that question having been reserved by the District Court could then be decided by the Court of Appeals.

    Then we came along of course to Rule 50 which deal way with the necessity of a specific reservation of that right and said that every time a motion for directed verdict was made in the trial court under Rule 50 (d) or Rule 50 (d).

    The questions of law are preserved.

    In my interpretation is that those questions of law which are reserved under Rule 50 (d) can be determined on appeal by the Court of Appeals.

    And —

    Hugo L. Black:

    So, that’s your position on what we want to do to discuss or to tell us why you could find that in the Rule 50 (d)?

    John C. Mott:

    I don’t think it is in Rule 50 (d).

    Oh, Rule 50 (d) as I read it says that nothing prohibits the Court from granting a new trial of a Court of Appeals from granting a new trial if he wants to.

    Hugo L. Black:

    Is there any thing in the Rule that indicates he had a right to grant a new trial?

    The Court of Appeals have the right to grant new trial?

    John C. Mott:

    Not specifically however in the Duncan case, Montgomery Ward versus Duncan in which Rule 50 was —

    Hugo L. Black:

    The Cone case was based on the Duncan case.

    John C. Mott:

    As I read the Cone case the fatal defect that occurred in that case at the trial court level was the failure of the defendant in that case to move for judgment notwithstanding the verdict (Voice Overlap) —

    Hugo L. Black:

    In that case the Court held that even the district judge couldn’t do it without that motion but it did not indicate the Court of Appeals could ever do it?

    John C. Mott:

    Well, that isn’t the way I read the Duncan case, sir.

    They’re saying in the Duncan case they say that if motion for new trial is made if motion for judgment notwithstanding the verdict is made at the trial court level if both motions are denied then the Court of Appeals can reverse and dismiss without to say reverse and dismiss.

    It says it can decide the questions of law and I submit that’s exactly what was done in this case that what the Circuit Court of the Court of Appeals did in this case was to decide the questions of law which were improperly decided below.

    And as far as the Cone case is concern my view of that case is that it says that because no judgment notwithstanding the verdict was made below the appellant in the Court of Appeals actually had no right to ask that court for a reversal and you can’t have something that you’re not — you don’t ask for and that was the basis as I read the case on which the decision rested.

    Now, there was comment on the Cone case, if it please the Court, to the effect that in the trial court if a motion for judgment notwithstanding the verdict was made and if it look like to the plaintiff and the case that the motion was going to be granted he would have the right under Rule 41 to ask for a voluntary dismissal of the case and start over or he might have saw the handwriting on the wall and ask for a new trial.

    Well, and in that case as I read it, the fact the judgment notwithstanding the verdict was not asked for in the trial court may have in that particular case deprive the plaintiff in that case to ask for something he otherwise might’ve asked for.

    But I submit under Rule 50 (d) that the petitioner in this case has not been denied the right to seek a new trial that she neglected to seek a new trial under Rule —

    Hugo L. Black:

    The question is not whether he’s been denied the right to seek a new trial, the sole question is whether the Court of Appeals had right to grant it to it.

    John C. Mott:

    Well, I say that under the judicial code the power is there and also the (Voice Overlap) —

    Hugo L. Black:

    Why not judicial — that provision was in the law at the time the Cone case and the Frankfort case were decided.

    And it was not held to be enough to allow the Court of Appeals to grant a new trial.

    John C. Mott:

    Merely because judgment notwithstanding the verdict was not —

    Hugo L. Black:

    No, not merely for that reason because that we carefully explained it, there are many reasons why the district judge was the one to decide it and not the Court of Appeals.

    John C. Mott:

    In Cone?

    Hugo L. Black:

    In what?

    John C. Mott:

    In the Cone case.

    Hugo L. Black:

    Yes, in the Cone and the Frankfort case.

    That’s what the case was all about.

    John C. Mott:

    Well, I’m in a peculiar position, if it please Your Honor, I know you wrote the decision and certainly you should know more about it than I or anyone else in this room but to me I didn’t ever read in the Cone case any prohibition on the general power of the Court of Appeals to —

    Hugo L. Black:

    Did you read the Cone case?

    John C. Mott:

    Yes sir, I did.

    Hugo L. Black:

    Did you read the part that said, why the Court of Appeals was the one not to do it and the District Court is the one to do it?

    John C. Mott:

    Yes, sir.

    It said that before the case went to the Court of Appeals, the Court of Appeals should have the benefit of the trial court’s thinking as to whether a new trial or a judgment notwithstanding the verdict should be granted.

    And that that would be helpful but —

    Hugo L. Black:

    It would be helpful?

    John C. Mott:

    Yes, sir.

    Maybe I’m not using absolutely the correct term there but at that —

    Hugo L. Black:

    I thought the Cone case held it would be necessary.

    John C. Mott:

    I think that’s a better word but it didn’t say that the power was unfair and that’s what I think we disagree.

    Sir?

    Hugo L. Black:

    Wasn’t where?

    John C. Mott:

    That the Court of Appeals didn’t have the power —

    Hugo L. Black:

    And it was not in the Court of Appeals under Rule — under the Rule.

    John C. Mott:

    Well, as I read it, it said that because the judgment notwithstanding the verdict was not requested that the Court of Appeals has no power to grant such relief.

    In other words, you can’t have something you don’t ask for and that’s what I submit is the situation with the plaintiff here in — with regard to Rule 50 (d) that she didn’t ask for a new trial in the Court of Appeals and therefore she can’t complain that she wasn’t granted that relief in the Court of Appeals.

    I would like to conclude that in my opinion the proper procedure was followed here by the parties all the way, a motion for directed verdict was made by the defendant in the trial court which brought into play the provisions of Rule 50 (a) and (b), a motion for this motion was denied which of course reserved that the rulings on the issues of law to a later point, a motion for a new trial and a motion for judgment notwithstanding the verdict were made by the defendant at the trial court level.

    Both of these motions were ruled on, both of them were denied —

    Potter Stewart:

    That was an alternative motion —

    John C. Mott:

    Yes, sir.

    Potter Stewart:

    That’s the general (Inaudible)?

    John C. Mott:

    Yes.

    It was a two-paragraph motion in the alternative one or the other.

    Potter Stewart:

    Right.

    John C. Mott:

    In both of those were ruled on which satisfies prior decision of this case that both of them have to be ruled on.

    I think the Duncan case is the one that says that.

    I think that at that point then it was for the Court of Appeals on — to determine the sufficiency of the evidence which it did at no point in the trial court during the process of the filing and the hearing of these motions to the plaintiff in the trial court seek any relief other than the judgment be affirmed.

    She didn’t make any statement as to any grounds she might have for a new trial.

    She didn’t make any statement with regard to possible dismissal of the case, should the motions should be granted.

    I submit that when the motion for judgment notwithstanding the verdict was denied, this enabled under the judicial code and under the rule.

    The Court of Appeals to review the sufficiency of the evidence and to finally determine the case and I submit that if Rule 50 (d) means that every time a case is reserved the District Court has the right to grant or deny a new trial.

    These matters would never end.

    The case would be reversed that trial court grant a new trial be tried it all over again in this procedure could theoretically go on for an extended period of time and certainly would not produce the ends that we desire from our system of justice.

    And I submit, if it please the Court, that the actions and judgment of the Court of Appeals in this case should be affirmed.

    Thank you.

    Earl Warren:

    Mr. Kripke.

    Kenneth N. Kripke:

    Mr. Justice — Mr. Chief Justice Warren, may it please the Court.

    I just have this further to say and that is that not only does Rule 50 not give the power to the Circuit Court to reverse and dismiss but it couldn’t.

    It seems to me that in Rule 50 (d) and in the sentence which Mr. Justice Black pointed out to counsel a moment ago the framers of the rule we’re trying to preserve to verdict winners some vestiges of the verdict that they have won.

    The sentence reads if the appellate court reverses the judgment nothing in this rule precludes it from determining that the appellee is entitled to a new trial or from directing the trial judge — the trial court to determine whether a new trial shall be granted.

    I don’t think that the framers of the rule ever thought that they could go beyond the — what the Seventh Amendment says with Rule 50 (d) and obviously it — such a — the rule does not.

    Byron R. White:

    Mr. Kripke, could I ask a question?

    Kenneth N. Kripke:

    Yes, sir.

    Byron R. White:

    Let’s assume a defendant who’ve lost in a trial court makes a motion for —

    Kenneth N. Kripke:

    You passed the verdict too?

    Byron R. White:

    Yes, right.

    Well, if you won and Mr. Mott makes a motion to — for judgment notwithstanding the verdict and apparently a motion for new trial.

    Kenneth N. Kripke:

    Yes, sir.

    Byron R. White:

    And the trial court then grants the motion notwithstanding the verdict and then you’re under 50 (c) —

    Kenneth N. Kripke:

    Yes, sir.

    Byron R. White:

    — and he also passes on the motion for new trial.

    He conditionally grants it if the ruling on the motion for verdict is reversed.

    He conditionally grants it.

    Byron R. White:

    Now the appellate court reverses his ruling on the judgment before on the n.o.v., may the appellate court, in your opinion, under any of your argument then reverse the grant of the new trial?

    Kenneth N. Kripke:

    Oh dear!

    I would say no sir.

    I don’t see how —

    Byron R. White:

    Well, the rule says, expressly says it can.

    Kenneth N. Kripke:

    This is a situation where the trial judge has denied the motion for judgment n.o.v. —

    Byron R. White:

    Has granted?

    Kenneth N. Kripke:

    Oh, has granted under Rule (c) and also granted the motion for new trial.

    Byron R. White:

    In the event this person judgment is overturned.

    Kenneth N. Kripke:

    Oh, I see.

    May it please the Court?

    I don’t think we get to that.

    I don’t know the answer to that Mr. Justice White.

    Byron R. White:

    Well, I don’t blame you for not getting to it but it seems to me that the rule expressly gives the Court of Appeals power to reverse the trial judge in this we think.

    Kenneth N. Kripke:

    I see a —

    Byron R. White:

    Doesn’t it say so expressly?

    Where did they get that power?

    Where’s the Court of Appeals get that power?

    Kenneth N. Kripke:

    I can’t answer that Mr. Justice White.

    I don’t know.

    I think as I understand the question.

    Byron R. White:

    All right, now let me say that they grant the motion for a motion n.o.v. in the trial court and conditionally rule on the motion for new trial by denying it but it is reversed.

    Kenneth N. Kripke:

    The difference I think —

    Byron R. White:

    May the appellate court then reverse the ruling on motion for new trial?

    Kenneth N. Kripke:

    I think I see the distinction.

    Here, the trial judge in the first instance under the language of the Cone case has the — have the power to — has ruled on this and has said that the — there was insufficient evidence to bring the case to a jury in the first place.

    That I think, Your Honor, is a very important difference.

    Byron R. White:

    Well, I know but what if the appellant on that basis you ought to say that the appellate court can never reverse the trial judge.

    Kenneth N. Kripke:

    Oh, no I wouldn’t say that.

    The appellate court can reverse but it cannot reverse and dismiss.

    Byron R. White:

    You mean as long as it get –- it first has what the trial judge has to say about the motion then it can go either way as long as the trial judge has proved he really does know what he’s talking about.

    Kenneth N. Kripke:

    No.

    Byron R. White:

    So he can reverse it, is that it?

    Kenneth N. Kripke:

    If the trial judge in his determination after sitting at the trial decides that there wasn’t enough evidence to reach a jury question then he so rules.

    Then, there has been a determination of that kind from which the Court of Appeals cannot —

    Byron R. White:

    (Voice Overlap) with the motion for new trial, I think.

    Kenneth N. Kripke:

    I’m sorry, sir?

    Byron R. White:

    What’s that got — that’s related to the n.o.v. motion not the motion for new trial?

    Well, anyway you don’t think they reached those?

    Kenneth N. Kripke:

    No, sir, I don’t.