A motion to modify our judgment has been filed, based upon the proposition that we should have remanded the cause for a new trial, instead of remanding it with directions to enter judgment for the defendant. The proposition is founded upon the following facts appearing in the record:
The case was tried to the court, without a jury. At the close of defendant's evidence, counsel for plaintiff moved for judgment on the evidence, pointing out alleged insufficiency of defendant's evidence, and certain facts claimed to amount to an estoppel, and that "he has failed to make out any case, and we therefore move for judgment." In reply to the motion, after argument, the court said:
"Well. I think the motion is addressed to the present condition of the case, and it is up to the court to decide what its opinion is to be from the evidence already heard. I can't see any use in going on and taking longer to try the case. With the evidence before the court now, even though the defendant has set up a general defense, the preponderance of the evidence is clearly in favor of the plaintiff. I will find for the plaintiff."
It thus appears that the plaintiff submitted the case upon the evidence then before the court, and did not deem it necessary to rebutt the defendant's evidence, if it could, although it had opportunity to do so. The court considered the case as submitted on the evidence, and found it to preponderate in favor of plaintiff, erroneously, as we have held. Now the plaintiff asks another opportunity to put in his rebuttal testimony, we assume. The defendant requested findings fully *Page 359 covering the issues, and all of the evidence in the case supported the same. It is apparent that plaintiff has no such right. The error of the district court was an invited error, so far as the plaintiff is concerned. The case stands here, just as it stood before the district court when the submission was made, and the court should have rendered the judgment then, which we have now directed. In such case there can be no right to a new trial. It follows that the motion should be denied; and it is so ordered.
BICKLEY and WATSON, JJ., concur.