
    George Volmer vs. August Stagerman and Wife.
    March 9, 1878.
    Want of Evidence to Prove the Cause of Action Set Out in Complaint. — Tliis action, was properly dismissed for want of evidence tending to prove the cause of action set out in the complaint. The order granting a new trial is accordingly reversed.
    Appeal by defendants from an order of the district court for Washington county, granting a motion for a new trial in this action, after said action had been dismissed upon motion of the defendants for insufficient evidence.
    
      E. C. Palmer, for appellants:
    
      James N. Castle, for respondent.
   Berry, T.

This action having been tried by the court below without a jury, was, upon defendants’ motion, dismissed. The plaintiff, upon a case settled, moved for a new trial, from the order granting which the present appeal is taken. The motion for a new trial was made upon two grounds : First, that the decision is not justified by the evidence, and is contrary to law; second,, that errors in law occurred at the trial, which were excepted to by plaintiff. There is nothing in the second ground, for the settled case shows no exception of any kind taken by plaintiff. As to the first ground, we are of opinion that the dismissal was right, for the reason that there was no evidence in the case tending to prove the cause of action set out in the complaint. The particular allegations, with reference to which there was a lack of evidence, are those relating to the blank note, which are an essential part of the plaintiff’s cause of action, as stated in the complaint. The •defendants, having duly objected to the insufficiency of the evidence in their motion to dismiss, the motion was properly granted. Order granting a new trial reversed.  