Opinion
No. 32,833.
May 2, 1941.
Appeal and error — necessity of exception or assignment of error as ground for review.
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.
Appeal by plaintiff from a judgment of the district court for Winona county, Karl Finkelnburg, Judge, dismissing his action. Affirmed.
P.S. Johnson and William Marx, for appellant.
Sawyer Sawyer, for respondent.
Plaintiff appeals from a judgment dismissing his cause of action. The only error assigned here is that "the court erred in granting respondent's motion to dismiss for insufficient evidence to warrant the 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.