
    Levi M. Stewart vs. Edward J. Davenport and others.
    February 8, 1877.
    Dismissal at Trial — -Exception.—Where no exception is taken to a decision dismissing an action on trial, for want of evidence, the correctness of such decision cannot be enquired into on a motion for a. new trial,, or on. appeal from an order denying a new trial.
    
      Appeal by plaintiff from an order of the court of common pleas of Hennepin county, Young, J., presiding, refusing' a new trial. The action was for malicious prosecution, and the substance of the complaint is stated in the report of the next following case.
    
      2). A. Secombe, for appellant.
    
      Atwater & Babcock and Lochren, McNair & Gilfillan, for respondents.
   Cornell, J.

After plaintiff had introduced his testimony and rested his case, defendants moved for a dismissal of the action, on the ground that there was not sufficient evidence to go to the jury showing or tending to show a. cause of action against them. The motion was granted, and no exception was taken. A motion was subsequently made for a new trial, because of this alleged erroneous-ruling not excepted to, and denied, and the case comes into-this court on an appeal from this order. An erroneous ruling of this character, not excepted to at the time, cannot be made the subject of review on a motion for a new trial,, or on appeal from an order denying it.

Order affirmed.  