
    Will Caproon, appellee, v. Hayden W. Mitchell, appellant.
    Filed November 22, 1906.
    No. 14,494.
    1. Appeal: Review. An order overruling a motion to strike from a petition will not be reviewed on appeal when not assigned as error in the motion for a new trial.
    2. Sales: Recovery or Payment. The plaintiff purchased a horse from the defendant, giving his note for the purchase price. The horse was lost to the plaintiff on account of a chattel mortgage made prior to his purchase, and his note had been transferred before due to a good-faith purchaser. Held, That he might recover from the defendant the amount of his note and interest.
    Appeal from tbe district court for Antelope county: John F. Boyd, Judge.
    
      Affirmed.
    
    
      E. D. Eilbourn, for appellant.
    
      O. A. Williams, contra.
    
   Duepie, C.

In an action commenced in county court, Caproon alleged that tbe defendant sold and delivered to bim a borse for tbe sum of $45, then duly paid by a promissory note for that amount; that tbe borse at tbe time of tbe sale was mortgaged to tbe Edwards-Bradford Lumber Company, who thereafter took possession from tbe plaintiff, and that tbe borse was wholly lost to him.. A trial resulted in favor of- tbe plaintiff, and defendant appealed to tbe district court. The plaintiff’s petition in tbe district court was tbe same practically as that filed in the county court, except that it contained tbe additional averment that tbe note which plaintiff bad given to defendant on tbe purchase of the borse “bad been sold and transferred by tbe defendant before maturity for a valuable consideration, to tbe Clearwater State Bank.” In tbe district court a motion was made to strike from tbe petition this additional averment, for the reason that it presented an issue not raised or tried in the county court. The motion to strike was overruled, and this ruling is alleged as error. An examination of the motion for a new trial discloses that the ruling of the court on this motion was not alleged as error or urged as a reason why a new trial, should be granted. We cannot, therefore, consider this assignment. Barker v. Davies, 47 Neb. 78. The evidence taken upon the trial has not been preserved in a bill of exceptions, and we have nothing before us but the pleadings and the judgment entered. We can, therefore, only determine whether the judgment is supported by the pleadings. If the defendant was still in possession of the note given him on the purchase of the horse, the plaintiff would have a perfect defense thereto, but it was sold before maturity to a good-faith purchaser. As against this purchaser the plaintiff has no defense. He has, therefore, been damaged to the amount of his note and interest by the horse being taken, from him on a prior valid claim. We discover no error in the record, and recommend an affirmance of the judgment.

JaoicsoN, C., concurs.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.  