
    William S. Conrad vs. Nelson M. Bauldwin and another.
    October 28, 1890.
    Dismissal- — Costs.—Where the court, when plaintiff rests, dismisses the action upon motion of defendant on the ground that no cause of action has been established, the judgment is one of dismissal and not upon the merits, and the defendant is entitled to only five dollars costs.
    Plaintiff, holding a judgment of $161.17 against the defendant Julia S. Fernwalt, on which execution had been issued and returned unsatisfied, brought this action in the district court of Hennepin county, to reach property alleged to have been fraudulently transferred by the judgment debtor to the defendant Bauldwin. At the trial, before Hooker, J., the action was dismissed on defendants’ motion at the close of the evidence for plaintiff. On taxation of costs by the clerk, the defendants were allowed $5 as “statutory costs.” On their appeal to the court, the clerk’s taxation was modified by Young, J., and the allowance increased to $10. Judgment for $26.03 costs and disbursements was thereupon entered for defendants, from whieh the plaintiff appeals.
    
      Frank R. Hubachek, for appellant.
    
      Stocker do Matchan, for respondents.
   Mitchell, J.

Upon the trial, when the plaintiff rested his case, the court, on motion of defendants, dismissed the action, evidently, as appears from the record, upon the ground that the plaintiff hadl failed to establish a cause of action. The judgment entered uporc this order was one of dismissal merely, and not upon the merits» Gen. St. 1878, c. 66, § 262, subd. 3. Hence, under Gen. St. 1878,. c. 67, § 2, the defendants were only entitled to five dollars statutory-costs. The-cause is therefore remanded, with directions to the court-below to modify the judgment appealed from by deducting therefrom-five dollars. It is ordered, however, that the appellant shall not. recover any costs in this court.  