
    Thompson v. Rutledge.
    
      (Decided January 21, 1929.)
    
      Mr. Marion W. Bacome, for plaintiff in error.
    
      Mr. Eldon H. Young, for defendant in error.
   Richards, J.

The original action was commenced by Ralph D. Thompson to recover damages for false and fraudulent representations, and resulted in a verdict in his favor in the amount of $1,000. Thereupon the defendant, Calvin C. Rutledge, filed a motion for an order rendering judgment in his favor notwithstanding the verdict of the jury. The defendant also filed a motio'n for a new trial. The court, on consideration of the motion for a judgment non obstante veredicto, granted- the same and rendered a judgment-for the defendant dismissing the plaintiff’s petition.

There can be no question that a motion for judgment notwithstanding the verdict should be determined upon a consideration of the averments of the pleadings when there is no special verdict or finding, and the court in disposing of such motion cannot consider the record outside of the pleadings. Neither can there be any question under the Code that this motion is available to either party when the state of the pleadings is such as justifies it. Baltimore & Ohio Rd. Co. v. Nobil, 85 Ohio St., 175, 97 N. E., 374.

The answer sets up nothing except that which could be shown under a general denial, and therefoie the motion of the defendant in effect assails the sufficiency of the petition. We therefore turn to the petition to ascertain from its averments whether a case is stated in that pleading. The plaintiff avers, among other things, that the defendant represented to him in January, 1923, that he was authorized to enroll the plaintiff, and would enroll him, in the Nesmith College of Chiropractic, claimed by him to be in operation at Deshler, Ohio, and that he was authorized to give plaintiff a complete course in the Nesmith system of chiropractic, which would require a period of about three years study, and that at the completion thereof plaintiff would receive a diploma issued by the University of the Potomac entitling him to use the degree of Doctor of Chiropractic. The petition further avers that Rutledge represented that Nesmith, the alleged proprietor and dean of the Nesmith College of Chiropractic at Deshler, was operating under a charter from the University of the Potomac as a branch thereof. All these representations are averred to have been false and untrue, that Nesmith had no school of chiropractic at Deshler, that he and Rutledge had no connection with the University of the Potomac, and that at no time was either of them in position to give plaintiff a degree or diploma from said school. He avers that these representations were known by the defendant to be false, that plaintiff relied on them, and, relying on them, paid, to the defendant $600, and in addition expended time and money by reason of the false representations.

After a careful examination of the petition, this court is convinced that it states a good cause of action.

It is urged, on behalf of the defendant, and the decision of the trial court was doubtless based upon the theory, that the petition discloses representations and transactions in violation of the statutes of Ohio, and therefore the plaintiff would not be entitled to recover. We do not so read the petition. Nowhere does it appear that the defendant represented that he would train and equip plaintiff so that he would be entitled to a certificate to practice chiropractic or any other form of healing art; nor that he would be prepared for admission to the examination conducted by the sta te medical board for such purposes. For anything that appears in the petition, the plaintiff may never have intended to practice any form of medicine in Ohio or elsewhere. He may have been interested in chiropractic and have desired to acquire what knowledge he could along that line. Certainly he would be entitled, if he applied himself to the study and equipped himself to receive a diploma from the University of the Potomac, to have received such diploma, and that would not be in violation of any statute. The plaintiff may have desired the diploma for such use as it might serve him in some other state than Ohio, or he may have desired it for what value it would be to him as a teacher of chiropractic.

It is true that the petition avers that the defendant represented that in one year to eighteen months he would take plaintiff into his office in Toledo, where he would be able to earn $100 or more per month. That is not equivalent to an averment that as a result of these studies he would be entitled to practice the art of chiropractic. He may have been expecting to be taken into the defendant’s office as a bookkeeper or a clerk. Indeed, the petition does not even allege that the defendant was engaged in his office or elsewhere in practicing chiropractic.

Finding that the petition contains averments sufficient to constitute a cause of action, and that it does not appear from the pleadings that the representations and proposed transaction constituted a violation of law, or a scheme to violate the law, the judgment non obstante veredicto will be reversed, and the cause remanded.

The situation of the record is such that it becomes important to determine the purpose for which the cause is remanded. The record discloses that the trial court on May 1, 1928, granted the motion for a judgment non obstante veredicto, and rendered a judgment in favor of the defendant - Rutledge notwithstanding the verdict against him. On May 14, 1928, at the same term of court, the case came on to be heard on the motion of the defendant for a new trial. The record shows the following in disposing of this motion: The court having granted the motion of defendant for judgment notwithstanding the verdict, which fully determines the case, this said motion for new trial is hereby overruled. To all of which the defendant then and there excepted.”

Although the defendant’s motion for a new trial was overruled, he did not take a bill of exceptions, relying on the judgment in his favor on the pleadings. It is entirely apparent that the trial court, having rendered a judgment for the defendant below,, did not pass on the merits of his motion for a new trial, but overruled the same as a mere matter of form, on the ground that the case had been already finally determined in that court. The judgment non obstante veredicto being erroneous and unauthorized, and the motion for a new trial not having been disposed of on its merits, it would seem to follow that said motion should now be acted upon by the trial court and disposed of on its merits. To remand the case for the rendition of a judgment on the verdict would not accomplish justice, because the defendant Rutledge has never had the judgment of the trial court upon the merits of his motion for a new trial.

It is certainly true that the case should be remanded for further proceedings according to law, but those proceedings should consist of a decision on the motion for a new trial on the merits of such motion. An eminent judge has said that points of practice are the mere etiquette of justice. To remand the case for a new trial, or with directions to render judgment for the plaintiff on the verdict, and ignore the fact that the only ground for overruling the motion for a new trial was that a judgment non obstante veredicto had been entered, would be to disregard justice and chase after a mere shadow.

In Felton v. Spiro, 78 F., 576, 24 C. C. A., 321, the court had under consideration a case in which the trial court had overruled a motion for a new trial solely on the ground that it had no power to set aside the verdict. The Circuit Court of Appeals, speaking through Taft, J., held that a judgment of reversal, based solely on the ground that the trial court erred in not exercising its discretion on a motion for a new trial, requires, not the ordering of a new trial, but only the remanding of the cause for further proceedings, which should be a direction to the trial court to consider and decide the motion for a new trial. This case was followed in Goldfield Mohawk Mining Co. v. Frances-Mohawk Mining & Leasing Co., 33 Nev., 491, 112 P., 42. In 4 Corpus Juris, 1202, the rule is stated as follows: “On reversal of an order denying a new trial, the appellate court will generally remand the case for a new trial, but sometimes the case is remanded with directions that the trial court pass on the motion again. Where the lower court did not pass on a motion for new trial, the appellate court, on reversal, will direct the lower court to decide the motion. Similarly, on reversal of an order erroneously granting a new trial on one ground, the appellate court will remand with directions that the lower court pass on the other grounds raised in the motion.”

This court is of opinion that the case falls within the foregoing authorities, and for that reason the judgment will be reversed and the cause remanded for further proceedings; such proceedings to consist, in the first instance, of a ruling on the motion for a new trial on its merits.

Judgment reversed and cause remcmded.

Williams and Lloyd, JJ., concur.  