MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the STATE OF NEVADA Upon the Relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Ormsby, Honorable Richard L. Waters, Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents
Misty Management Corp. v. First Judicial District Court
Zenoff, J., concurs.
MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the STATE OF NEVADA Upon the Relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Ormsby, Honorable Richard L. Waters, Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents.
MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the STATE OF NEVADA Upon the Relation of Misty Management Corporation and Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Ormsby, Honorable Richard L. Waters, Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents.
No. 5282
April 17, 1967
426 P.2d 728
E. M. Gunderson, of Las Vegas, and Ball, Hunt, Hart and Brown and George E. McGill, of Long Beach, California, for Petitioners.
Martiliero and Bucchianeri and Daniel R. Walsh, of Carson City, for Respondents.
OPINION
By the Court,
Thompson, C. J.:
This is an original proceeding in prohibition to preclude the district court from hearing a motion to vacate a judgment upon the ground that it is void. The judgment was entered in an action filed by Thomas Wyatt against Misty Management. Wyatt sought to set aside a deed to certain real property, and also requested damages. The case was tried to a jury. At the close of the evidence, Misty Management moved for a directed verdict. The motion was denied, and the case allowed to go to the jury. The jury favored Wyatt with its verdict. Misty Management then filed a motion for a judgment n.o.v. The court granted that motion, and directed the entry of judgment for Misty Management. Wyatt appealed, but his appeal was dismissed by this court for failure to comply with essential procedural requirements. Wyatt then filed a motion in the district court to vacate the judgment. It is this motion to which the present prohibition proceeding is directed.
The motion to vacate the judgment entered at court direction for Misty Management, rests upon Rule 60(b)(3) which allows the court to relieve a party from a finál judgment if it is void. That provision is normally invoked (either by motion, or by independent action) in a case where the court entering the challenged judgment was itself disqualified from acting, e.g., Osman v. Cobb, 77 Nev. 133, 360 P.2d 258 (1961), or did not have jurisdiction over the parties, e.g., LaPotin v. LaPotin, 75 Nev. 264, 339 P.2d 123 (1959); Foster v. Lewis, 78 Nev. 330, 372 P.2d 679 (1962), or of the subject matter of the litigation. None of these infirmities exist here. All agree that the district court enjoyed complete jurisdiction over the subject matter and the parties in the case of Wyatt v. Misty Management, and was not otherwise disqualified from acting. Wyatt's claim that the judgment n.o.v. is void does not rest upon a lack of jurisdiction in the traditional sense. Instead, it is his position that the judgment n.o.v. is void since there was substantial evidence to support the jury verdict, and the court was, therefore, deprived of power to set it aside. Additionally, he presses the notion that the court's action in granting a judgment n.o.v. denied his constitutional right to a jury trial. We think that his claims are without substance.
If we were to assume, arguendo, that the court in granting the judgment n.o.v. incorrectly evaluated the legal effect of the proof offered at trial, the post-judgment remedy was by appeal. Annat v. Beard, 277 F.2d 554 (5 Cir. 1960). A judgment which is erroneously entered by reason of the trial court's improper view of the proof is not a void judgment within the meaning of Rule 60(b) (3). Cf. Annat v. Beard, supra; Ackerman v. United States, 340 U.S. 193 (1950). The propriety of the judgment n.o.v. which Wyatt now seeks to challenge by motion under Rule 60(b) (3) could have been presented to this court by a properly perfected appeal. As already noted, an appeal was attempted, but dismissed for procedural defaults. Wyatt slept on his rights in perfecting his appeal, and now asks the lower court to resolve a contention, which, had orderly procedure been followed, would have been resolved by us. Upon dismissal, the judgment n.o.v. became res judicata. Wight v. Montana-Dakota Utilities Co., 299 F.2d 470 (9 Cir. 1962); Stumpff v. Harper, 214 P. 709 (Okla. 1923); Vestal: Preclusion/Res Judicata Variables: Adjudicating Bodies, 54 Georgetown LJ. 857, 882 (1966). The words of Justice Douglas in United States v. Munsingwear Inc., 340 U.S. 36, 41 (1950) are apropos: "The case illustrates not the hardship of res judicata but the need for it in providing terminal points for litigation."
The notion that a favorable ruling upon a Rule 50(b) motion for judgment n.o.v. somehow violates the constitutional guaranty of a jury trial has been rejected by the United States Supreme Court. Neely v. Eby Construction Co., 386 U.S. 317 (1967), see also; Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940). Further discussion on this point is not warranted.
Since the issue now sought to be presented to the lower court has become res judicata, and is not of jurisdictional stature, we rule that the court is without power to entertain the motion to vacate the judgment n.o.v. Stumpff v. Harper, supra. The case was terminated when the appeal was dismissed and the remittitur issued. The alternative writ of prohibition heretofore issued is made permanent.
Zenoff, J., concurs.
Daniel R. Walsh counsel for respondent in this proceeding was not counsel for Wyatt at trial or on appeal.