Page:North Dakota Reports (vol. 3).pdf/229

, J. In this action the verdict was for the defendants. Plaintiff moved for a new trial, basing its motion upon “the pleadings in the case, the minutes and memoranda of the court, the stenographer’s report of the evidence adduced upon the trial, and the affidavit of plaintiff's counsel The motion was initiated by the service of a notice of intention stating that the “grounds upon which such motion would be urged are: First, That the court erred in withdrawing said cause from the jury, and in ordering the jury to render a verdict for the defendants, to which action of the court the plaintiff duly excepted at the time. Second, That if the evidence adduced and delivered to the jury on ‘said trial was in fact or in the opinion of the court insufficient to make a fair, prima facie case for the consideration of the jury, such defect of proof resulted from the oversight of the plaintiff's counsel, and not from an actual lack of evidence to support said cause as set up in the complaint; and the plaintiffs are justly entitled to have another opportunity to establish the merits of their cause before a jury.” The motion was denied, and judgment was entered for defendants dismissing the action, and for costs. No appeal is taken from the judgment, but plaintiff appeals to this court from the order denying the motion for a new trial.

The Judge of the District Court has by his certificate properly identified the papers mentioned below as the papers used on the motion for the new trial, and the clerk has certified such papers to this court, under § 5, Ch. 120, Laws 1891, providing that, “if the appeal is from an order, he shall transmit the order appealed from, and the original papers used by each party on the application for the order appealed from.” The papers thus certified up are the following: Complaint; answer; verdict; judgment; order denying motion for a new trial; said notice of intention; an affidavit of plaintiff's counsel, referred to in such notice; a document purporting to be a transcript of the evidence, rulings, exceptions, etc., had and taken upon the trial of this action, which is certified to be correct by the official stenographer of the District Court, but not otherwise authenticated as a true version of the procecdings