Neely v. Martin K. Eby Construction Co., Inc.

No. 383. Neely v. Martin K. Eby Construction Co., Inc. Charles A. Friedman for petitioner. Anthony F. Zar-lengo and Joseph S. McCarthy for respondent. [MAJORITY] C. A. 10th Cir. Certiorari granted. In addition to all the questions presented by the petition, counsel are requested to brief and discuss at oral argument the following questions: “1. Whether the Court of Appeals, after deciding that respondent should have been granted a judgment n. o. v., had power under Rule 50 of the Federal Rules of Civil Procedure and our decisions in Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212; Globe Liquor Co. v. San Roman, 332 U. S. 571; and Weade v. Dichmann, Wright & Pugh, 337 U. S. 801, to order the case dismissed and thereby deprive petitioner of any opportunity to invoke the trial court’s discretion on the issue of whether petitioner should have a new trial? “2. Whether the Court of Appeals erred in ordering the District Court not merely to enter a judgment n. o. v. for respondent but to dismiss plaintiff’s case in view of Rule 50 (c)(2) of the Federal Rules of Civil Procedure which gives a party whose verdict has been set aside the right to make a motion for a new trial not later than 10 days after entry of the judgment notwithstanding the verdict?”