
    J. M. DIMENT v. H. M. BLOOM.
    
    January 4, 1897.
    Nos. 10,254-(92).
    Dismissal — Failure of Plaintiff to Appear.
    Where the answer does not set up a counterclaim, and the plaintiff fails to appear at the trial, the court may dismiss the action on defendant’s motion; hut it is error to try the case in the absence of plaintiff, and award defendant judgment on the merits.
    Appeal by plaintiff from a judgment of the district court for Ramsey county, in favor of defendant, entered in pursuance of the findings and order of Egan, J.
    Reversed.
    
      Wheelock <& Sperry and A. G. Hickman, for appellant.
    
      Albert B. Ovitt, for respondent.
    
      
       Reported in 69 N. W. 700.
    
   QANTY, J.

This action was commenced in 'the municipal court of Owatonna, and it does not appear how the case found its way to the district court of Ramsey county, where it was tried and judgment rendered for defendant. The plaintiff appeals from that judgment, but on such a record he cannot raise the question that the action was wrongfully removed from said municipal court.

The case was called for trial in said district court, the plaintiff failed to appear, and thereupon, in the absence of plaintiff, the defendant proceeded to try the case on the merits, and introduced evidence to prove his version of the transaction in question. The court made findings of fact and ordered judgment on the merits in favor of defendant, which was entered. The action is for the recovery of money claimed as rent. The answer does not contain any counterclaim. Under these circumstances, it was error for the court to order any judgment but that of dismissal. Keator v. Glaspie, 44 Minn. 448, 47 N. W. 52.

The judgment is reversed, the findings of fact set aside, and the cause remanded to the court below for further proceedings not inconsistent with this opinion.  