Biggs Ex Rel. Biggs v. Biggs Ex Rel. Weiters

MooRe, J.(1) Defendant assigns as error the failure of the court to nonsuit the action.

At the close of plaintiff’s evidence defendant moved for nonsuit. The motion was overruled and defendant excepted. Thereafter defendant introduced evidence and plaintiff offered evidence in rebuttal. At the close of all the evidence there was no renewal of the motion to nonsuit. Defendant assigns as error both the refusal of the court to nonsuit at the close of plaintiff’s evidence and the failure to dismiss at the close of all the evidence.

Assignment of error No. 5 is as follows: “EXCEPTION #7 (R. p. 53).…