
    Wilcox v. Goldsmith.
    1. Practice: party: costs. A party wbo files a disclaimer of interest in the action and moves for a dismissal, which is refused, cannot, after a trial upon the merits and judgment, escape liability for costs upon the ground that he is not a proper party.
    
      Appeal from Buena Vista District Court.
    
    Monday, October 23.
    Action of replevin for a house not attached to land. There was a trial to the court, without a jury, and judgment for plaintiff. Defendant appeals.
    
      G. 8. Bobinson, for appellant.
    
      William Wart and Lot Thomas, for appellee.
   Beck, J.

I. Before the issues in this case were joined defendant filed a disclaimer of any interest in the action, and thereon moved to be dismissed, and that one Bancp; t>e substituted as defendant. The motion was overruled. Thereupon, defendant filed an answer denying plaintiff’s right to recover, and- setting up several special defenses. It is now claimed that the court erred in overruling the motion. We have not before us all the evidence upon which the court acted in ruling on the motion, at least the abstract does not profess to give all. We will presume that there was evidence before the court authorizing the decision on the motion. It may have been shown by Banck himself that he claimed no interest in the suit and that defendant was attempting, by means of the motion, to escape liability.’ The case may have been presented in many other forms requiring the decision upon the motion made by the court. Defendant cannot, after pleading to the action and contesting the case, and after a judgment rendered against him, escape from the costs he has made on the ground that he is not a party, when the court has found, upon a proper issue presented in the pleading, that he, in truth, wrongfully held possession of the house.

II. The abstract does not show that it contains all the evidence. We cannot, therefore, consider the objection made by defendant, that the judgment is in conflict with the testimony.

Affirmed.  