1. The petition in trover, when legally construed, and as admitted by counsel for the plaintiff in error, was brought by the plaintiff in his own name, and yet it showed the title to the property sued for in another person, and failed to show any right of possession in the plaintiff. The petition was therefore fatally defective, and the court did not err in dismissing it on an oral motion by the defendant.
2. Although the bill of exceptions shows that before the motion to dismiss was made, the plaintiff introduced testimony tending to show a right of possession in him, and, further, that he had a special property right in the property sued for, the bill of exceptions and the record clearly show that no nonsuit was granted, but that the motion to dismiss the petition was made “ on account of fatal defects therein,” and that this motion was granted and the petition dismissed. It follows that this court can not consider the evidence introduced.
Judgment affirmed.