Diamond Rubber Co. v. Wernicke

— Action on an alleged written guaranty. Issues were raised by tbe pleadings and there was a trial before a jury. At the conclusion of plaintiff’s evidence defendant offered the following demurrer: “Now comes defendant at the close of all of plaintiff’s evidence and demurs to same for the reason that .under the law and the evidence plaintiff is not entitled to recover. ’ ’

The record shows that the court was “about to sustain said demurrer” when plaintiff took a nonsuit *129with leave to move to set the same aside. It is conceded the court did not formally rule on the demurrer. In due time…