Where a party whose motion for a directed verdict has been
denied in a federal district court fails, within 10 days after
reception of a verdict against him, to make a motion for judgment
notwithstanding the verdict, as authorized by Rule 50(b) of the
Federal Rules of Civil Procedure, an appellate court is precluded
from directing entry of such a judgment. Pp.
330 U. S.
217-218.
153 F.2d 576, reversed.
Petitioner sued respondent in a state court for damages for
trespass upon lands. The suit was removed to the Federal District
Court because of diversity of citizenship. A judgment for the
petitioner was reversed by the Circuit Court of Appeals, which
directed entry of judgment for the respondent. 153 F.2d 576. This
Court granted certiorari "limited to the questions of federal
procedure raised by the petition for the writ." 329 U.S. 701.
Reversed, p.
330 U. S.
218.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner brought this action in a South Carolina state
court. Upon motion of respondent, it was removed to the Federal
District Court because of diversity
Page 330 U. S. 213
of citizenship of the parties. The complaint claimed $25,000
damages upon allegations that the respondent's agents had
trespassed upon and cut timber from lands owned by and in the
possession of the petitioner. Respondent's answer denied that the
petitioner had title or possession of the lands and timbers. Both
title and possession became crucial issues in the trial. The burden
of proving them rested on the petitioner. [
Footnote 1] When all the evidence of both parties had
been introduced, the respondent moved for a directed verdict in its
favor on the ground that the petitioner had failed to prove that he
either owned or was in possession of the land. [
Footnote 2] This motion was denied. The jury
returned a verdict for petitioner for $15,000, and the court
entered judgment on the verdict. The respondent moved for a new
trial on the ground of newly discovered evidence. This motion was
denied. Respondent did not move for judgment notwithstanding the
verdict, as it might have done under Rule 50(b) of the
Page 330 U. S. 214
Federal Rules of Civil Procedure, which is set out below.
[
Footnote 3]
The Circuit Court of Appeals decided that the admission of
certain evidence offered by the petitioner to prove legal title was
prejudicial error. It held that, without this improperly admitted
evidence, petitioner's proof was not sufficient to submit the
question of title to the jury. That court also held that
petitioner's evidence showing possession was insufficient to go to
the jury. It therefore reversed the case. But, instead of remanding
it to the District Court for a new trial, the Circuit Court of
Appeals directed that judgment be entered for respondent. That
court has thus construed Rule 50(b) as authorizing an appellate
court to direct a judgment notwithstanding the verdict even though
no motion for such a judgment had been made in the District Court
within ten days after the jury's discharge.
The petition for certiorari challenged the power of an appellate
court to direct entry of a judgment notwithstanding the verdict
where timely motion for such a judgment
Page 330 U. S. 215
had not been made in the District Court. On three previous
occasions, we have granted certiorari to consider this point, but
failed to reach it because, upon examination of the evidence, we
found it sufficient to justify submission of all three cases to the
jury.
Conway v. O'Brien, 312 U. S. 492;
Berry v. United States, 312 U. S. 450;
Halliday v. United States, 315 U. S.
94. In this case, we granted certiorari "limited to the
questions of federal procedure raised by the petition for the
writ." 329 U.S. 701. The point we had in mind was whether a party's
failure to make a motion in the District Court for judgment
notwithstanding the verdict, as permitted in Rule 50(b), precludes
an appellate court from directing entry of such a judgment. Other
questions have been discussed here, but we do not consider them.
Consequently, we accept, without approving or disapproving, the
Circuit Court of Appeals' holding that there was prejudicial error
in the admission of evidence and in the submission of the case to
the jury.
Rule 50(b) contains no language which absolutely requires a
trial court to enter judgment notwithstanding the verdict even
though that court is persuaded that it erred in failing to direct a
verdict for the losing party. The rule provides that the trial
court "may reopen the judgment and either order a new trial or
direct the entry of judgment as if the requested verdict had been
directed." This "either-or" language means what it seems to mean --
namely, that there are circumstances which might lead the trial
court to believe that a new trial, rather than a final termination
of the trial stage of the controversy, would better serve the ends
of justice. In short, the rule does not compel a trial judge to
enter a judgment notwithstanding the verdict instead of ordering a
new trial; it permits him to exercise a discretion to choose
between the two alternatives.
See Berry v. United States,
supra, 312 U. S.
452-453. [
Footnote
4]
Page 330 U. S. 216
And he can exercise this discretion with a fresh personal
knowledge of the issues involved, the kind of evidence given, and
the impression made by witnesses. His appraisal of the
bona
fides of the claims asserted by the litigants is of great
value in reaching a conclusion as to whether a new trial should be
granted. Determination of whether a new trial should be granted or
a judgment entered under Rule 50(b) calls for the judgment, in the
first instance, of the judge who saw and heard the witnesses and
has the feel of the case which no appellate printed transcript can
impart.
See March v. Philadelphia & West Chester Traction
Co., 285 Pa. 413, 418, 132 A. 355;
Bunn v. Furstein,
153 Pa.Super. 637, 638, 34 A.2d 924.
See also Yutterman v.
Sternberg, 86 F.2d 321, 324. Exercise of this discretion
presents to the trial judge an opportunity, after all his rulings
have been made and all the evidence has been evaluated, to view the
proceedings in a perspective peculiarly available to him alone. He
is thus afforded "a last chance to correct his own errors without
delay, expense, or other hardships of an appeal."
See Greer v.
Carpenter, 323 Mo. 878, 882, 19 S.W.2d 1046, 1047;
cf.
United States v. Johnson, 327 U. S. 106,
327 U. S.
112.
Page 330 U. S. 217
There are other practical reasons why a litigant should not have
his right to a new trial foreclosed without having had the benefit
of the trial court's judgment on the question. Take the case where
a trial court is about to direct a verdict because of failure of
proof in a certain aspect of the case. At that time, a litigant
might know or have reason to believe that he could fill the crucial
gap in the evidence. Traditionally, a plaintiff in such a dilemma
has had an unqualified right, upon payments of costs, to take a
nonsuit in order to file a new action after further preparation,
unless the defendant would suffer some plain legal prejudice other
than the mere prospect of a second lawsuit.
Pleasants
v. Fant, 22 Wall. 116,
89 U. S. 122;
Jones v. SEC, 298 U. S. 1,
298 U. S. 19-20,
and cases cited. Rule 41(a)(1) preserves this unqualified right of
the plaintiff to a dismissal without prejudice prior to the filing
of defendant's answer. And, after the filing of an answer, Rule
41(a)(2) still permits a trial court to grant a dismissal without
prejudice "upon such terms and conditions as the court deems
proper." [
Footnote 5]
In this case, had respondents made a timely motion for judgment
notwithstanding the verdict, the petitioner could have either
presented reasons to show why he should have a new trial or at
least asked the court for permission to dismiss. If satisfied from
the knowledge acquired from the trial and because of the reasons
urged that the ends of justice would best be served by allowing
petitioner another chance, the judge could have so provided in his
discretion. The respondent failed to submit
Page 330 U. S. 218
a motion for judgment notwithstanding the verdict to the trial
judge in order that he might exercise his discretionary power to
determine whether there should be such a judgment, a dismissal, or
a new trial. In the absence of such a motion, we think the
appellate court was without power to direct the District Court to
enter judgment contrary to the one it had permitted to stand.
It has been suggested that the petitioner could have presented
affidavits to the Circuit Court of Appeals to support his claim for
a new trial, and that that court could thereupon have remanded the
question to the District Court to pass upon it. [
Footnote 6] Such a circuitous method of
determining the question cannot be approved. For Rule 50(b)
specifically prescribes a period of ten days for making a motion
for judgment notwithstanding the verdict. Yet the method here
suggested would enable litigants to extend indefinitely the
prescribed ten-day period simply by adoption of the expedient of an
appeal. Furthermore, it would present the question initially to the
appellate court, when the primary discretionary responsibility for
its decision rests on the District Court.
Reversed.
[
Footnote 1]
Under governing South Carolina law, an action such as this is
not one to try title, but "to recover damages for trespass of
property of which the plaintiff was in possession."
Macedonia
Baptist Church v. Columbia, 195 S.C. 59, 70, 10 S.E.2d 350,
355. But possession may be presumed from proof of legal title.
Beaufort Land and Investment Co. v. New River Lumber Co.,
86 S.C. 358, 68 S.E. 637;
Haithcock v. Haithcock, 123 S.C.
61, 115 S.E. 727; Code of Laws of South Carolina (1942) ยง 377.
Petitioner here undertook to prove possession both by showing that
he had legal title and by showing that he had openly and
notoriously exercised acts of dominion, possession, and ownership
over a long period of years.
[
Footnote 2]
Respondent first moved to dismiss the case on the same grounds
under Rule 41(b) of the Federal Rules of Civil Procedure. That rule
provides for a dismissal, under the circumstances and conditions
there set out, where, "upon the facts and the law, the plaintiff
has shown no right to relief." Since substantially the same
disposition of the case on the same grounds was later requested by
respondent in the motion for a directed verdict, we shall have no
occasion further to discuss the motion to dismiss.
[
Footnote 3]
"50(b) RESERVATION OF DECISION ON MOTION. 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. Within 10 days after
the reception of a verdict, 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
his 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 a verdict was returned, 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."
[
Footnote 4]
The Advisory Committee on Rules for Civil Procedure, in
commenting on Rule 50(b), stated that
"A trial court or an appellate court, in setting aside a
verdict, always has discretion, if justice requires it, to order a
new trial instead of directing the entry of judgment. Rule 50(b)
states that the court, on a motion for judgment notwithstanding the
verdict, 'may either order a new trial or direct the entry of
judgment' for the moving party."
Report of Proposed Amendments to Rules of Civil Procedure (1946)
66.
See also New York Symposium on Federal Rules (1938)
283-284.
Compare March v. Philadelphia & West Chester
Traction Co., 285 Pa. 413, 132 A. 355;
Nadeau v. Maryland
Casualty Co., 170 Minn. 326, 331, 212 N.W. 595;
Anderson
v. Newsome, 193 Minn. 157, 258 N.W. 157;
Porsmer v.
Davis, 152 Minn. 181, 188 N.W. 279;
Jackson v.
Hansard, 45 Wyo. 201, 218,
17 P.2d
659.
[
Footnote 5]
Rule 41(a)(2), Federal Rules of Civil Procedure, has been
interpreted as authorizing a plaintiff to dismiss his action
"without prejudice where the court believes that, although there is
a technical failure of proof, there is nevertheless a meritorious
claim." Report of Proposed Amendments to Rules of Civil Procedure
(1946) 64;
see United States v. Lyman, 125 F.2d 67;
Lyman v. United States, 138 F.2d 509;
Home Owners'
Loan Corp. v. Huffman, 134 F.2d 314, 317.
[
Footnote 6]
This general suggestion was made by the Advisory Committee on
Rules for Civil Procedure in its recent recommendation to us for
modification of Rule 50(b). The Committee said:
"Even on appeal, if the appellate court sets aside his verdict,
he may present to the appellate court affidavits to support his
claim to a new trial, and the appellate court has power to receive
the affidavits and remand the case to the trial court with
instructions to consider the affidavits and determine whether a new
trial should be allowed."
Report of Proposed Amendments,
supra, 66.