an order setting aside the verdict and granting a new trial, both parties appeal. Reversed.
The opinion of the court was delivered by
Wallin, J. This action is for the conversion of wheat. The complaint sets out two separate causes of action—one for the conversion of wheat covered by plaintiff's chattel mortgage; the other for the conversion of wheat upon which plaintiff claims a seed lien. On December 10, 1890, a jury trial was had, resulting in a general verdict in plaintiff's favor for the sum of $484.00. No notice of intention to move for a new trial was ever served, but on defendant's application, and with the consent of plaintiff’s counsel, a bill of exceptions was settled and allowed on April 6, 1891. Prior to settling the bill of exceptions plaintiff's counsel had served on counsel for defendant the following notice: ‘Please take notice that on the pleadings, proceedings and verdict herein, on the 4th day of April, 1891, at 3 o'clock p. m., at the court house in Fargo, N. D., the plaintiff will move the court that the second cause of action mentioned in the complaint herein be withdrawn and dismissed without prejudice, for the reason that the defendant has on record objected to any recovery thereon on the ground that it is not assignable, and on the ground that the evidence failed to show that the seed wheat had been sown on the land described in said lien; and plaintiff will move the court that the verdict stand for the amount due on the mortgage. mentioned in the complaint, being $268.00 at the date of said verdict, and that plaintiff have judgment therefor, with costs.” After hearing the motion the court made the following order: “The motion of plaintiff for judgment on the verdict herein coming on fora hearing as per notice annexed, and plaintiff having moved for jadgment for $484.00, or $268.00 as per said written notice, J. E. Robinson appearing for plaintiff and A. C. Davis for defendant, and defendant claiming error in the record as shown by the bill of exceptions this day settled and allowed, and the court being of opinion that there was error, it is by the court ordered that the verdict herein be, and the same is, set aside, and a new trial is hereby granted.” To this order of the district court
