the record are certified to as being used on the application for a new trial, and this is substantially what the statute requires. It would seem quite clear that this court ought not to strike from its files any papers or records properly certified to this court from the court below. Bailey v. Scott, (S. D.) 47 N. W. Rep. 286. Hence the motion to purge the record must be denied, and we are therefore brought to a consideration of the case as it appears in the light of all the papers in the record.
In this court plaintiff has assigned only the following errors: First, “the court erred in withdrawing the case from the jury, and ordering a verdict for the defendants;” second, “if, as the court seemed to think, there was in fact a deficiency of proof, then the court erred in refusing a new trial to afford the plaintiff another opportunity to establish its claim;” third, “the court erred in refusing a new trial.” The third assignment of error cannot be sustained, unless some legal ground or reason for granting a new trial was presented to the trial court.
The second assignment of error does not purport to point out any specific error, either of law or fact, which occurred at the trial, and which would of itself constitute a legal ground for a new trial of the action, A deficiency of proof offered at a trial certainly does not alone constitute any ground for a new trial enumerated in § 5088, Comp. Laws. The assignment omits to state, and nothing in the record supplies the omission, if it could be supplied, that any newly discovered evidence had come to pla tiff’s knowledge since the trial; much less is there any attempt to excuse the laches which would. have been involved in the non- production of evidence know by plaintiff to exist, and which was not produced at the trial. It follows that the second assignment of error must, for the reasons stated, be overruled.
The first assignment of error, according to the stenographer’s transcript, is predicated upon an alleged ruling of the District Court made after plaintiff had rested its case, and is based upon the evidence adduced by the plaintiff. In order to review this ruling, the fact that the ruling was made and excepted to,
