NON OBSTANTE VEREDICTO. Not withstanding the verdict. See JUDGMENT.
Judgment non obstante veredicto, strictly and technically, is a judgment given for the plaintiff, on his motion, where the defendant had a verdict, but it appears from the record that, either from some matter growing out of the pleading or because the fact found by the jury is immaterial, the defendant is not, in law, entitled to the judgment. In such cases where the common-law practice pre vails, a writ of inquiry is awarded to assess the damages; 2 Tidd, Pr. 920. "The right method . . . is not to state the entry of judgment upon the verdict by rule, but to enter the verdict upon record, and then the judgment for the plaintiff non obstante vere dicto.'.' id. For a statement of the nature and effect of such a judgment at common law, see JUDGMENT. As appears from the definition there given, this was a judgment for the plaintiff, and in many of the states, it has been uniformly held that judgment non obstante veredicto can only be given for a plaintiff ; the remedy for a defendant is to have the judgment arrested; Buckingham v. McCracken, 2 Ohio St. 287; Bellows v. Shan non, 2 Hill (N. Y.) 86. A motion by a defend ant for a judgment non obstante veredicto is never allowable; Smith v. Powers, 15 N. H. 546; Sheehy v. Duffy, 89 Wis. 6, 61 N. W. 295; Bradley Fertilizer Co. v. Caswell, 65 Vt. 231, 26 Atl. 956 ; Tillinghast v. McLeod, 17 R. I. 208, 21 Atl. 345; Burnham v. R. Co., 17 R. I. 544, 23 Atl. 638; Steph. Pl. [98]; 1 Freem. Judg. § 7 ; 1 Black, Judg. § 16; unless the well-settled common-law rule has been relaxed by statute or decisions ; German Ins. Co. v. Frederick, 58 Fed. 144, 7 C. C. A. 122, 19 U. S. App. 24.
A motion for such judgment must be founded on the record alone; Steam v. Clif ford, 62 Vt. 92, 18 Atl. 1045 ; Smith v. Smith, 2 Wend. (N. Y.) 624; it cannot be rendered after a judgment upon a verdict has been entered ; State v. Bank, 6 Smedes & M. (Miss.) 218, 45 Am. Dec. 280; Scheible v. Hart (Ky.) 12 S. W. 628. It is allowed where a verdict has been found for the defendant on an insufficient plea in avoidance ; Jones v. Fennimore, 1 G. Greene (Iowa) 134; Dewey v. Humphrey, 5 Pick. (Mass.) 187; that is, where the plea confesses the action and en tirely falls to avoid it ; Martindale v. Price, 14 Ind. 115'; or if found true, is neither bar nor answer ; Sullenberger v. Gest, 14 Ohio 204; or if an immaterial issue tendered by the plaintiff was found .for the defendant and a repleader was unnecessary to effect jus tice ; Shreve v. Whittlesey, 7 Mo. 473 ; or if on motion for a new trial it is clear 'that in no event could damages be recovered on cause of action ; Ballou v. Harris, 5 R. 419. But such a judgment will not be enter ed where the evidence on material issues of fact was conflicting to such an extent as to require the submission of such issues to the jury ; Blazosseck v. Sherman Co., 141 Fed.
In Pennsylvania, under a statute, where a point of law is reserved at the trial, the jury is instructed to find for the plaintiff, where upon the defendant moves for judgment on the point reserved non obstante veredicto.
See 2 Brewster, Prac. 1219. This statute is held by the United States supreme court to be not enforceable in the federal courts as being in conflict with the seventh amend ment to the constitution ; Slocum v. Ins. Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879. See NEW TRIAL. in some other states, the technical common-law rule that this form of judgment should not be given for the de fendant, has not been observed; though it would seem that this change of practice is due, in some degree, to the confusion of this subject with judgment on special verdicts and points reserved, and to the fact that judgments are frequently entered under the name non obstante veredicto, which properly and technically would not be such if the common-law distinctions were carefully ob served. Such judgment for defendant has been entered in an action for damages where a plea of contributory negligence was not controverted ; Louisville & N. R. Co. v. May field (Ky.) 35 S. W. 924 ; or where plaintiff's evidence is a mere scintilla; Holland v. Kin dregan, 155 Pa. 156, 25 Atl. 1077; or where special findings in plaintiff's favor were set aside as against undisputed evidence, and de fendant moved for judgment on the remain ing findings and undisputed evidence ; Meno minee R. S. & Door Co. v. R. Co., 91 Wis. 447, 65 N. W. 176. But such statute does not apply to a case in which the jury dis agreed ; McKinnon v. Rynkievicz, 145 Fed. 863; and such motion by defendant will not be granted where the defence is a gen eral denial; Virgin Cotton Mills v. Aber nathy, 115 N. C. 402, 20 S. E. 522; or where the pleadings and evidence raise ques tions of fact proper for a jury ; Slivitski v. Wien, 93 Wis. 460, 67 N. W. 730; or where the evidence supports a verdict for plaintiff, but the undisputed facts show the transac tion to be within the statute of frauds ; Tern pleman v. Gibbs (Tex.) 25 S. W. 736. A res ervation of "the question whether there is any evidence in this case, to be submitted to the jury, on which plaintiff is entitled to recover," does not present a "point reserved" to authorize judgment for defendant non obstante veredicto; Yerkes v. Richards, 170 Pa. 346, 32 Atl. 1089; nor can such judgment be rendered for plaintiff where verdict is for defendant, subject to the question reserv ed whether, notwithstanding the findings, plaintiff was not entitled to recover ; Hosier v. Hursh, 151 Pa. 415, 25 Atl. 52. Where there was a verdict for plaintiff subject to the opinion of the court on the question of law reserved, the court directed judgment for defendant non obstante veredicto, saying that it had the same effect as a directed verdict ; Casey v. Pay. Co., 109 Fed. 744, af firmed 114 Fed. 189, 52 C. C. A. 145.