bly have any application. The ruling of the court in directing a verdict cannot be construed as either an order or a decision, within the meaning of that section. Such ruling, if erroneous, constitutes an error of law occuring on the trial. The California statute is practically the same as § 5080, so far as this question is concerned. Mr. Hayne says, speaking of the California practice in this respect: ‘As has been shown, an erroneous ruling on a motion for a non-suit is an error of law. Under the language of the subdivision, therefore, it must be excepted to, and, as it is not one of those matters which are deemed to be excepted to, the exception must be taken by the party. The exception is to be taken in the same manner as exceptions to the admission or rejection of evidence.” Hayne, New Trial & App. § 119. Only the verdict of a jury, certian orders, and certain decisions are deemed excepted to. The direction of a verdict is neither the verdict, nor is it an order or a decision. An order is defined as “every direction of a court or judge made or entered in writing, and not included in a judgment.” § 5323, Compiled Laws. A decision is the written statement of the court’s findings of fact and conclusions of law. §§ 5066, 5067, id. Nor will § 5237 aid the appellant. It provides that, “upon an appeal from a judgment as well as upon a writ of error, the supreme court may review any intermediate order or determination of the court below which involves the merits, and necessarily affects the judgment, appearing upon the record transmitted or returned from the district court, whether the same was excepted to or not. Nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record.”
To bring the ruling of the trial court in this case within this section, it must be either an order or a determination. That it is not an order is apparent from the statutory definition of an “order” already referred to. There can be found no decision in which such a ruling, or indeed any ruling. upon the trial of a case, has been construed to be an order. Nor can it be held to be a determination. Such a construction would lead to the doc-
