Pust v. Holtz

Per Curiam.

The motion to dismiss must be granted because the appeal is taken from a nonappealable order. Upon the reception of the verdict respondent moved the court for judgment notwithstanding the verdict or for a new trial. The court denied judgment, but granted a new trial on the ground that the verdict was not justified by the evidence. Thereafter appellant moved to vacafe_this order. The court did not specifically deny the motion, but made an order reciting that on motion of appellant the former order "is amended and modified so as to read that the court erred . in denying the motion of the defendant to dismiss the action of the plaintiff at the close of the plaintiff’s testimony for the reason that there was no evidence sufficient to sustain the claim made by the plaintiff;'and said order is so amended and modified as to contain the ground above stated.” From this last-mentioned order the appeal is taken.

An order granting a new trial is not appealable unless "based exclusively upon errors occurring at the trial and it .is so expressly stated in the order or memorandum of the trial court.” 2 Considering the two orders made as one and the appeal as if from such order, it does not clearly appear that a new trial was granted exclusively for the alleged erroneous ruling mentioned by the court in the amendatory order. There is nothing in the point that a motion for a new trial upon the court’s minutes ,was not in time. It was made and heard the day after the rendition of the verdict.

[G. S. 1913, § 8001, subd. 4.]