
    Alfred Wilson, appellee, v. George O. Dallas, appellant.
    Filed June 11, 1909.
    No. 15,740.
    Appeal: Review. To justify a reversal of the judgment of the district court, error must affirmatively appear.
    Appeal from the district court for Frontier county: Robert O. Orr, Judge.
    
      Affirmed.
    
    
      J. L. White, for appellant.
    
      Morían, Ritchie cC- Wolff mid E. P. Pyle, contra.
    
   Letton, J.

This action ivas begun in the county court to recover rent due upon a written lease. The defendant denied indebtedness, and pleaded a counterclaim for repairs necessary to make the premises habitable. From a judgment for defendant, plaintiff appealed to the district court, where a trial was had which resulted in a judgment in his favor. Defendant appeals.

The first answer filed in the district court contained a general denial. Plaintiff filed a motion to strike this portion of the answer for the reason that it raised a new issue not raised in the county court. The sustaining of this motion is one of the errors relied upon for reversal. The record shows the filing of this motion, hut fails to show that it was ever ruled on by the court. It next recites the filing of an amended answer setting up the same issues as in the county court and the filing of a reply thereto, and these were the pleadings upon which the case was tried.

Complaint is also made of the giving of instruction No. 5, directing the jury that under the issues and the evidence they could not allow the defendant anything upon his counterclaim. Neither can this assignment be considered.

The jury found for the defendant, whereupon the plaintiff filed a motion for judgment non obstante veredicto, and this motion was sustained. No motion for a new trial was filed by defendant within three days thereafter. We find in the record a motion for new trial filed by defendant three months later, but no ruling thereon was made, presumably because filed out of time.

In this condition of the record, no error affirmatively appears, and the judgment of the district court is

Affirmed.  