Smith v. Carr

Collins, J., delivered the opinion of the Court. This is an appeal by Albert H. Smith and Mary Smith, his wife, defendants below, from a judgment with interest and costs, rendered in the Circuit Court for Prince George’s County in favor of the appellees here, plaintiffs below, Edward R. Carr and Lloyd R. Coates. The suit was brought under the common counts and a special count for real estate brokers’ commissions for the sale of the property of the defendants at 4112 Claggett Road, College Heights Estates, Maryland, to Mr. and Mrs. Leo Saemann. The judgment was entered on a verdict rendered by a jury.

The appellants assign as error (1) the denial of their motion to withdraw the case from the jury and direct a verdict for them. This motion was offered at the end of the plaintiffs’ case but was not re-offered at the end of the whole case; and (2) that the Trial Court erred in its instructions to the jury. (1) Section III—Trials, Rule 4—Directed Verdicts— of the General Rules of Practice and Procedure adopted by this court and effective September 1, 1941, provides in part as follows: “In any proceeding tried by jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made, but in so doing he withdraws the motion. * * *” (Italics supplied here.) See also Rule 17 of the Court of Appeals.

After the defendants offered their evidence the motion for a directed verdict was not re-offered or renewed. Under the rule above set forth the defendants, by offering their ³⁴⁰ evidence, withdrew their motion for a directed verdict offered at the close of the plaintiffs’ case. Therefore, there was no motion before the Court to withdraw the case from the jury at the .close of all the evidence. There is nothing before this Court to review on this question.

Rule 9 of the Court of Appeals