Winning v. Timm

Per Curiam. Plaintiff appeals from a judgment dismissing his cause of action. The only error assigned here is that “the court erred in granting *271 respondent’s motion to dismiss for insufficient evidence to warrant tlie jury in finding in favor of the plaintiff.” At the close of plaintiff’s case defendant moved for a dismissal on the ground of insufficiency of the evidence. The trial court granted the motion. No exception was taken to this ruling. There was no motion for a new trial and consequently no assignment of error in the court below. Error, if any, in a ruling on the trial may not be reviewed on an appeal from a judgment if appellant did not take an exception to the ruling on the trial or assign it as error in a motion for a new trial. 2 Mason Minn. St. 1927, § 9327; 1 Dunnell, Minn. Dig. (2 ed. & Supps.) §§ 388, 388a; Le Mieux v. Cosgrove, 155 Minn. 353 , 193 N. W. 586 ; Peterson v. Township of Manchester, 162 Minn. 486 , 203 N. W. 432 ; Lundblad v. Erickson, 180 Minn. 185 , 230 N. W. 473 ; Duluth, Missabe & Northern Ry. Co. v. McCarthy, 183 Minn. 414 , 236 N. W. 766 ; Johnson v. Gustafson, 201 Minn. 629 , 277 N. W. 252 . Presented at the outset with this situation, we do not deem the other questions involved in the appeal as properly before us. Affirmed.