¶1concurring in part, dissenting in part:
¶2I concur in that part of the opinion in this case which deals with the merits of the case, which has been questioned in a petition for rehearing and now becomes final. I also concur in the ruling of the Court that the case should be remanded to the Circuit Court of Wayne County for a new trial. I do this on the ground that the trial, upon the issue of devisavit vel non, under Code, *78241-5-11, was and should have been governed by the rules pertaining to the trial of actions at law in general. There being conflict in the evidence in the case, there should be a new trial.
¶3My dissent goes to the last paragraph of the opinion in which the remand for a new trial is based upon Point 8 of the Syllabus in Koblegard Co. v. Maxwell, 127 W. Va. 630, 34 S. E. 2d 116. It was not necessary to rely upon this case as authority for a new trial in this case, and it injects into this case a dispute which has no real bearing upon the merits of the controversy, and should not have been raised. The issue being forced, I cannot allow silence to mislead anyone as to my views.
¶4I shall not go into an extended argument upon the merits of the holding in the Koblegard case. That must await a situation where the question is -material. But inasmuch as what I conceive to be error is sought to be strengthened by repetition, I think it might be well to call attention to a few facts and holdings bearing upon the question.
¶5The dispute goes back to the case of Maupin v. Insurance Co., 53 W. Va. 557, 45 S. E. 1003, in which this Court held:
“If a defendant, giving no evidence, moves the court to exclude the plaintiff's evidence as not sufficient to warrant a verdict for the plaintiff, or to direct a verdict for him, and his motion is overruled and this court reverses the judgment for that cause, it will not remand the cause for another trial, but will enter judgment for the defendant, or, as it chooses, direct the circuit court to do so, unless satisfied that it will work injustice.”
¶6That case was written by Judge Brannon, and appears to have been followed in Anderson v. Tug River Coal and Coke Company, 59 W. Va. 301, 53 S. E. 713; Ruffner Brothers v. Insurance Co., 59 W. Va. 432, 53 S. E. 943; *783McMillan v. Coal Co., 61 W. Va. 531, 57 S. E. 129; Soward v. American Car Company, 66 W. Va. 266, 66 S. E. 329; and Weeks v. Chesapeake & Ohio Railway Company, 68 W. Va. 284, 69 S. E. 805. These cases were overruled, in so far as they conflicted with the ruling of this Court in Dunbar Tire & Rubber Co. v. Crissey, 92 W. Va. 419, 114 S. E. 804, in which it was held:
“In a civil suit a judgment will not be rendered non obstante veredicto unless the merits of the case, as disclosed by the pleadings, justify such judgment. Where a conclusion as to the rights of the parties involves a consideration of the evidence, and the court comes to the conclusion that the jury’s verdict is not supported thereby, a judgment non obstante veredicto will not be rendered, but a new trial will be granted upon motion of the party adversely affected by such verdict.”
¶7This case was followed by Zogg v. Kern Oil & Gas Co., 94 W. Va. 17, 117 S. E. 620; Gray v. Norfolk & Western Railway Co., 99 W. Va. 575, 130 S. E. 139; and Clise v. Prunty, 112 W. Va. 181, 163 S. E. 864. None of these cases went beyond the proposition that where the evidence was involved, and the verdict was set aside by reason of the insufficiency of the evidence to support it, the person prejudiced by the vacation of the verdict should have a right to a new trial. Everyone 'concedes that in such a case there should be a new trial.
¶8Point 8 of the Syllabus in the Koblegard case goes much farther and reads:
“Where, in an action at law, this Court, upon the reversal of a judgment of a trial court, sets aside a jury verdict on the ground that there is insufficient evidence to support the verdict, a new trial will be awarded in all cases except where there is a demurrer to the evidence.”
¶9The cases cited above, which are supposed to justify the radical departure from all former decisions, announced in the Koblegard case, do not, and were not intended to, *784destroy the power of courts to render a judgment non obstante veredicto in a proper case, a practice long used to the end that there might be an end to litigation in cases where, the court can see, beyond all question of doubt, that a plaintiff could not recover in, or a defendant sustain a défense to, a particular action. For example: Plaintiff brings an action based upon a transaction as to which there is no factual dispute, and the court holds he cannot recover because it involves a transaction void on grounds of public policy, and there can be no recovery thereon at any time. Of what value would it be to remand such a case for retrial? This is one of many situations which could arise where a court should be free to act in the interest of the prompt administration of justice.
¶10As stated above, these questions are not involved here, but I do not believe that we should, in effect, reiterate as the law of this State, that this Court is helpless to end litigation where it can see there can be no possible recovery or the opposite in a new trial; or that its right to render judgment non obstante veredicto in a proper case should be destroyed, or at least substantially restricted. In modern times, certain people follow the policy' of endeavoring to create the impression of truth by constant reiteration of that which is not true. I do not choose to engage in any such practicé, and I file this dissent because I want to emphasize my disagreement with a statement of law that there must be a new trial in every case where the evidence is involved, except where there has been a demurrer to the evidence, which I believe to be unsound, and which by necessity, growing out of cases coming up in the future, must be ignored, modified or overruled. Being unsound in principle and practice, its recognition in any way is unwise.