582 LITIGATING THE CONTROVERSY Ch. 27

The Motion in Arrest of Judgment

THE Motion in Arrest of Judgment was used in the Early Period of American Pro- cedure, and is still in effect in our Common Law Jurisdictions. In Some States, as, for example, Massachusetts82 and Rhode Is- land,83 its use was limited to cases involving a Lack of Jurisdiction of the Court, whereas in Maine,84 the Motion was abolished entirely in Civil Cases. No mention of the Motion was included in the New York Code of Pro- cedure in 1848, but it has received Statutory Recognition in a Few States having Unitary Procedures, such as Arizona, Georgia, In- diana, North Carolina and Texas. In a Few Other States such as Colorado and South Carolina, it has been used without such Stat- utory Recognition. In still Other States, as in Kentucky, the Motion in Arrest and the Motion for Judgment Non Obstante were fused by Statutory Enactment,85 and this practice has been adopted in a number of Other States. This latter Motion, which is in effect a Motion for Judgment on the Plead- ings, is not restricted to a Motion After Ver- dict, and it had the combined effect of a Demurrer and the relevant Common-Law Motions. In New York the recognition of the Judicial Equivalent of the Common-Law Mo- tions was given Statutory Effect in 1908 when the Legislature provided that where either Party was entitled to Judgment on the Plead- ings, the Court might give Judgment at any time after Issue Joined,86 and this provision was carried forward in the Civil Practice Act

enacted in the Code of 1854, § 416. The Statute re- quired that “where, upon the statements in the Pleadings, one party is entitled by Law to Judg- ment in his favor, Judgment shall be so rendered by the Court, though a Verdict has been found against such party.”

of 1920,87 being expanded to permit con- sideration of Admissions outside the Plead- ings, and it was made available at any Stage of an Action or Appeal. In the Common-Law Motions, the result of the Motion turns upon the Pleadings exclusively, without any regard to the evidence. The Rule is probably to the contrary under the liberal provisions as to Amendment which now prevail, except where the Fact involved was neither alleged nor sub- ject to Proof. This situation was met in Eng- land by the Common Law Procedure Act of 1852,88 which permitted the Party whose Pleading was said to be Defective to suggest the existence of the Fact in question, which, when Pleaded to by the Opposite Party, was then tried. If found in favor of the Suggest- ing Party, he was entitled to the rendition of the same Judgment which would have been entered if the fact had been Originally Stated in the Pleading under attack. This Practice was adopted in substance in Florida.89

Under the Federal Rules of Civil Pro- cedure the Motion in Arrest of Judgment is not recognized, but the same work to some extent is done by the Motion for Judgment on the Pleadings, which may be made in ad- vance of the Trial.90 And under the Amend- ments of 1946, and the rule currently in ef- fect, it is provided that if Matters Outside the Pleadings are considered on the Motion, such Motion is to be treated as One for Sum- mary Judgment.91

The Motion for Judgment Notwithstanding the Verdict

THE Motion for Judgment Non Obstante Veredicto operated on the theory that the de- fendant’s Plea had expressly admitted the Cause of Action Stated in the Declaration,