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MICHAEL J. SPRADLIN v. MAYNARD H. SMITH

SEPTEMBER 17, 1986

MICHAEL J. SPRADLIN
v.
MAYNARD H. SMITH



BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This is an appeal of a suit for personal injuries from the Circuit Court of Jackson County. There was a verdict for the defendant, whereupon the plaintiff filed his motion for a new trial or, in the alternative," for a judgment in favor of the plaintiff notwithstanding the verdict of the jury ". The judgment was entered on the 25th day of January, 1984. The plaintiff's motion was filed in the office of the circuit clerk on February 6, 1984.

The court sustained the motion, first by an order dated March 2, 1984, wherein it was stated that the plaintiff" is hereby granted a new trial on the issues of damages only ". This order was amended by an order nunc pro tunc on March 8, 1984, wherein it was stated that the plaintiff" is hereby granted a judgment notwithstanding the verdict in his favor, and a new trial on the issue of damages only ". It is apparent that the judge expected his order to be appealed; in fact, he so stated in the record. So that there would be no misunderstanding as to his wishes in this matter, he entered still another order nunc pro tunc on March 23, 1984, wherein it is stated the plaintiff" is hereby, granted a judgment notwithstanding the verdict in his favor, and unless reversed or vacated a new trial on the issue of damages only ". The order further stated that it was for the purpose of assuring an appeal to this Court, under Rule 50 Miss.R.Civ.P.

 The appellant, defendant below, assigns two errors: first, that the motion for a new trial or, alternatively, for a judgment notwithstanding the verdict was not" timely served ", and that the questions of negligence and proximate

 cause were for the jury.

 Also to be considered on this appeal is the appellee's motion to dismiss the defendant's appeal because of this Court's lack of jurisdiction, asserting that the lower court has not presented any appealable order.

 First we address the filing or serving of the plaintiff's motion. Factually, the 10-day period for serving the motion, according to Rule 59, expired on February 4, 1984, except that Rule 6 (a) does not require the counting of Saturday and Sunday. February 4th was a Saturday; therefore, February 6th was the last day.

 The motion was filed in the office of the clerk on that date; however, according to the postmark, it was not mailed to the defendant until February 7th and received on February 8th.

 Plaintiff's counsel testified that he did in fact mail the same on February 6th, and apparently the lower court so found and proceeded to hear his motion. We should not disturb the lower court's finding of fact and ruling thereon.

 Next we consider the appellee's motion to dismiss for lack of jurisdiction. Rule 50 (c) expressly provides for the conditional grant of a new trial when a judgment notwithstanding the verdict has been entered. The comment under Rule 50 applicable where both motions have been granted is as follows:

 3. The trial court may grant both motions. If it does so the grant of a new trial is conditional only and becomes effective only if the grant of judgment (JNOV) is reversed. The conditional grant of the new trial does not affect the finality of the judgment (JNOV) and appeal can be taken from the grant of judgment. In opposing the motion for judgment the party for whom the verdict was returned is entitled to urge that errors were committed during the trial that at least entitled him to a new trial rather than to any entry of judgment against him. He may move for a new trial within ten days after entry of the judgment notwithstanding the verdict and, whether he has moved for a new trial or not, may argue on appeal that he is entitled to a new trial.

 If the appellate court affirms the grant of judgment the case is ended. If it reverses the grant of judgment the new trial must proceed, in accordance with the conditional order by the trial court," unless the appellate court has otherwise ordered. "

 We hold that Rule 50 (c) expressly provides for an appeal where a judgment notwithstanding the verdict has been entered and a new trial conditionally granted. Johnson v. City of Pass Christian, 475 So.2d 428 at 431-32 (Miss. 1985) and Larkin v. Perry, 427 So.2d 138, 139 (Miss. 1983).

 Now to the merits of this appeal: After reviewing the evidence, and particularly in light of the fact that the appellee was heavily intoxicated at the time he was struck by appellant's automobile, we are of the opinion that the judgment notwithstanding the verdict should not have been granted. In Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss. 1975), the rule applied to directed verdicts, peremptory instructions, judgments notwithstanding the verdicts and the granting of new trials was clearly delineated and review of this case and those that follow, especially Stubblefield v. Jesco, 464 So.2d 47 (Miss. 1984), reveals that an entirely different burden applies to the granting of new trials than to ...


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