roll, was not settled in time, and was, for divers reasons suggested by counsel, never legally settled nor certified by the court below, and hence, as counsel argues, should not be considered by this court as a bill of exceptions within the meaning of the law. Counsel further argues that the motion for a new trial, which appears to have been made and overruled, cannot be reviewed, because the motion was based wholly upon such bill of exceptions, and must fall with the bill No reason is suggested by respondent’s counsel, either in his brief or upon the oral argument of the motion, why the appeal should be dismissed, hence the motion must be denied. The motion was misconceived. If, as counsel claims, the bill of exceptions was never legally settled nor certified, it would properly constitute no part of the judgment roll. Under such circumstances, a motion would lie to purge the record by striking out or suppressing the extraneous document. No-such motion was made or argued in this case, and hence the entire record, as contained in the judgment roll, remains intact, and must be considered in disposing of the case upon the merits. Upon the merits of the case, the judgment of the district court is affirmed. All concur.
Mary Slattery, an Infant, by Michael P. Slattery, her Guardian, Plaintiff and Appellant, v. Frank Donnelly, Defendant and Respondent.
1. Evidence Examined; Case Should Have Gone to the Jury.
In this action, after a trial by jury, and at the close of plaintiff's testimony, the defendant moved the trial court to direct a verdict in defendant’s favor, which motion was granted, and plaintiff duly excepted to the order. Evidence examined. Held, that the order directing a verdict was substantial error to plaintiff's prejudice, and that a new trial must be granted for the reason that the evidence reasonably tended to sustain the allegations of the complaint, and hence such evidence should have been submitted to the jury.
(Opinion Filed November 29, 1890.)
APPEAL from district court, Burleigh county; Hon. William H. Francis, Judge.
Louis Hanitch, for appellant; George W. Newton, for respondent.
