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Keen v. Davis

OCTOBER 28, 1966.

JOHN M. KEEN, ADMINISTRATOR OF THE ESTATE OF CAROL JUNE KEEN, DECEASED, PLAINTIFF-APPELLANT,

v.

ALVA C. DAVIS, DOING BUSINESS AS ALVA C. DAVIS DRILLING COMPANY, WILLARD TULLIS, JOHN DAVIS, DOING BUSINESS AS JOHN DAVIS EXCAVATING COMPANY, AND CLARENCE TAYLOR, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Wayne County; the Hon. HARRY L. ZIEGLER, Judge, presiding. Judgment entered upon allowance of defendants' motions for directed verdict affirmed in part and reversed in part.

GOLDENHERSH, P.J.

Plaintiff appeals from the judgment of the Circuit Court of Wayne County, entered upon allowance of defendants' motions for a directed verdict at the close of the plaintiff's case.

Defendants have filed a motion to dismiss the appeal on the ground that plaintiff, having failed to file a post-trial motion, has waived the right to apply for a new trial, and the failure to file such post-trial motion prevents consideration of the appeal on its merits. The motion to dismiss the appeal was taken for consideration with the case.

The issue presented by defendants' motion was considered and decided by the Appellate Court for the First District in Rzeszutko v. Yellin, 61 Ill. App.2d 164, 208 N.E.2d 872, by the Appellate Court for the Second District in Malcomson v. Bennett, 69 Ill. App.2d 281, and the Appellate Court for the Third District (now the Fourth District) in Mann v. Sanders, 29 Ill. App.2d 291, 173 N.E.2d 12. The First and Second Districts held that section 68.1(5) of the Civil Practice Act (c 110, § 68.1(5), Ill Rev Stats 1965) is applicable, and allowed motions to dismiss the appeals. The holding in Mann v. Sanders (supra) is to the contrary.

Section 68.1 of the Civil Practice Act (c 110, Ill Rev Stats) provides, in part:

"(1) If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (a) grant the motion or (b) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion."

"(2) Relief desired after trial in jury cases, heretofore sought by reserved motions for directed verdict or motions for judgment non obstante veredicto, for judgment notwithstanding the verdict, in arrest of judgment or for new trial, must be sought in a single post-trial motion. . . . The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief. . . . A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion."

"(5) Any party who fails to seek a new trial in his post-trial motion, either conditionally or unconditionally, as herein provided, waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict."

Prior to the 1955 amendment, the only provision of the Civil Practice Act pertaining to directed verdicts, was found in section 68(3) (a). A party adversely affected by a ruling on a motion for directed verdict had an exception "as a matter of course." The only provision for post-trial motions (§ 68(1)) required that a motion be filed if the post-trial relief sought was judgment non obstante veredicto, arrest of judgment, or a new trial.

The effect of the 1955 amendments (§ 68.1, supra) was to require the renewal of a motion for directed verdict in a post-trial motion, but there is no provision for a post-trial motion by the party against whom the verdict is directed.

We agree with our colleagues in the First District that "the purpose of a post-trial motion for a new trial is to give the trial court an opportunity to correct any trial errors. . . ." (Rzeszutko v. Yellin, 61 Ill. App.2d 164, 167, 208 N.E.2d 872). This, however, does not enable us to read into the Civil Practice Act a requirement for a post-trial motion where the Act contains no such requirement.

A motion for a directed verdict presents the single issue of whether the plaintiff's evidence, considered together with all reasonable inferences from it, in its aspect most favorable to the plaintiff, fails to prove any necessary element of the plaintiff's case, Hulke v. International Mfg. Co., 14 Ill. App.2d 5, 142 N.E.2d 717, and raises only a question of law. Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 84 N.E. 614; John Deere Plow Co. of Moline v. Carmer, 350 Ill. 104, 182 N.E. 762. The ruling on the motion is solely an act of the court, and envisioning any participation by the jury in rendering a verdict at the direction of the court, is pure legal fantasy.

In our opinion, the provisions of section 68.1 express the legislative intent that a post-trial motion be required only in those cases in which a jury has actually rendered a verdict. This is evidenced by the fact that no such motion is required in cases in which the jury has failed to reach a verdict (§ 68.1(5)), or in non-jury cases (§ 68.3). Absent a clear and unequivocal statutory directive, neither precedent nor logic make mandatory a motion for new trial in a situation where only one issue is presented, when the ...


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