
    WHITE SEWING MACHINE COMPANY v. DIEDRICH C. BEHRENS and Others.
    
    April 22, 1895.
    No 9292.
    Trial — Submission on Pleadings.
    
      Held, that the “hearing” at a general term of the court below was not a motion by either party for judgment on the pleadings, but that it sufficiently appears that, at such hearing, the parties intended to try the case on its merits, by submitting it to the court on the pleadings without evidence; and, the burden of proof being on the plaintiff, judgment was properly ordered for defendant.
    Appeal by plaintiff from a judgment of the district court for St. Louis county .entered in pursuance of the findings and order of Lewis, J.
    Affirmed.
    
      Schmidt é Reynolds, for appellant.
    
      Pinch é Whaley, for respondents.
    
      
       Reported in 62 N. W. 1127.
    
   CANTY, J.

This is an action brought by a judgment creditor to set aside a conveyance by the judgment debtor alleged to have been made without consideration, and with the intent and for the purpose of defrauding his creditors. It is also alleged that the deed was never witnessed, and was never acknowledged by the grantors, and that the witnessing and acknowledgment appearing on the same are forgeries. The defendants, in their answer, admit the recovery and docketing of the judgment, and the conveyance of the property by the judgment debtor, as alleged, except that they deny that the deed of conveyance was made without consideration or with intent to defraud, and allege that it was duly witnessed and acknowledged, and a valuable consideration paid to the judgment debtor for the same. Judgment was entered in favor of the defendants, and against the plaintiff* corporation, from which it appeals. No case or bill of exceptions was filed. The judge filed his “findings and order for judgment,” from which it appears that “the above-entitled action duly came on for hearing” at a general term of the court, and that, “before going to trial, the case was dismissed as to the second cause of action. The first cause of action was submitted on the pleadings.,r The judge then proceeds to make findings of fact, in which he finds all the facts admitted by the answer, and then makes conclusions of law and an order for judgment for defendant.

It is now contended by counsel for appellant that the hearing was merely a motion for judgment on the pleadings; that his complaint states a good cause of action; and that, therefore, it was error to order judgment for defendants. We cannot agree with counsel. No motion for judgment on the pleadings by either party appears, and, from what does appear', we must hold that the parties intended to try the case on its merits by submitting it on the pleadings, without evidence. Of course, as the burden of proof was on plaintiff, this could only result in an order for judgment for defendants.

Judgment affirmed.  