S. H. KRESS & CO.
Darnell, Robertson & Holesapple, of Tucson, for appellant.
Richard H. Chambers, of Tucson, for appellee.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concur.
De Concini, Justice.
[70 Ariz. 176] The court's opinion handed down January 23, 1950, 69 Ariz. 366, 213 P.2d 901, disposed of appellant's appeal declining to review the evidence on the ground that appellant did not make a motion for a new trial in compliance with the rule provided in section 21-1703, A.C.A.1939. Upon motion for a rehearing counsel called the court's attention to Rule 50(b), section 21-1015, A.C.A.1939, which the court did not consider in its original opinion.
At the close of plaintiff's case and again at the close of all the evidence, defendant, appellant, moved for a directed verdict on the ground that plaintiff had failed to prove any actionable negligence on the part of defendant. Both motions were denied. The jury returned a verdict for plaintiff and the court entered judgment on the verdict. Within the prescribed time, defendant moved for judgment N. O. V. but did not join therewith a motion for a new trial nor did he alternatively pray for a new trial.
Upon examination of the authorities the court is of the opinion that when, following a denial of a motion for a directed verdict, a motion for judgment notwithstanding the verdict, (non obstante veredicto) is made under Rule 50(b) and denied, it is not necessary to make a motion for a new trial under section 21-1703, supra, in order to secure a review of the evidence and a determination as to whether as a matter of law the evidence was insufficient to sustain the verdict and judgment.
This court held in Burney v. Lee, 59 Ariz. 360, 129 P.2d 308, 311, that the supreme court could make rules in conflict
with statutory provisions regulating procedure, the latter being in reality merely "rules regulating the procedure of the courts," and when it did, such rules (in this [70 Ariz. 177] case Rule 50(b)) superseded the statute (section 21-1703, supra).
Prior to the adoption of the new rules relating to procedure (1940) we had no provision relating to "judgment notwithstanding the verdict" therefore section 21-1703, supra, was mandatory. Since the enactment of Rule 50(b) following a denial of motion for a directed verdict, when the party appealing has made a motion for judgment N. O. V. on the ground that as a matter of law the evidence is insufficient to sustain the judgment, the following portion of section 21-1703, A.C.A.1939, is not applicable: "* * * on an appeal from a final judgment the Supreme Court shall not, however, consider the sufficiency of the evidence to sustain the verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made."
An exposition of the purpose of Rule 50(b) may be found in Moore's Federal Practice, Vol. 3, page 3108, section ...