
    Mary Gruble v. W. H. Ryus, et al.
    
    Action brought in the district court of Wyandotte county, by Mary Gruble against William H. JRyus as principal, and nine others as his sureties, on his bond as sheriff of said county. Trial at the July Term, 1878, when the court sustained a demurrer to the plaintiff’s evidence, and gave judgment for the defendants. The plaintiff brings the case here. The facts sufficiently appear in the opinion.
    
      W. S. Carroll, for plaintiff in error.
    
      Hadley, Seroggs & Hale, for defendants in error.
   Per Curiam:

On the trial of this case, the defendants demurred to the plaintiff’s evidence on the ground that it did not prove a cause of action. The court sustained the demurrer, and then rendered judgment in favor of the defendants, and against the plaintiff for costs. On the fifth day thereafter, the plaintiff filed a motion for a new trial, which motion was overruled by the court. The plaintiff then brought the case to this court for review.

The judgment of the court below must be affirmed. This necessarily follows from numerous decisions already made by this court, among which see: Nesbit v. Hines, 17 Kas. 316; Fowler v. Young, 19 Kas. 150; Lucas v. Sturr, 21 Kas. 480; City of Atchison v. Byrnes, 22 Kas. 65, 67, 68.

The demurrer to evidence and the ruling thereon is merely one step in the progress of the trial. (Civil Code, §275.) Such ruling is a decision “occurring at the trial,” made during the progress of the trial, and while the jury are still in their box ; and where the decision sustains the demurrer: as in this case, it is equivalent to an instruction to the jury to find for the demurring party. And while such a decision is based primarily upon a want of evidence, yet this very want of evidence may have been caused by a prior ruling excluding evidence. We think it follows from the foregoing decisions, that in order to enable the supreme court to review a decision of the trial court sustaining a demurrer to evidence, it is necessary that a motion for a new trial should be made, and that it should be filed within three days after the decision of the trial court is rendered.

Judgment affirmed.  