Appeal from the Eleventh District.

Complaint avers, that plaintiff and a number of other persons formed a joint stock company, known as the “ Miner’s Ditch Company,” to construct a ditch for water in certain mining localities; that the stock of the company was to be represented by shares valued at one hundred dollars each, of which plaintiff owns seventy, making him the principal stockholder; that the ditch is finished, and has been delivering water to miners for a long time; that defendants, by purchase from some of the original stockholders, are now the owners of twenty-three shares of stock, and refuse to recognize plaintiff as a stockholder in the company, or as in any way interested in the property or business thereof, or to permit him to exercise any of the rights or privileges of a stockholder. The complaint further avers, that defendants have fraudulently conspired together to injure plaintiff, and deprive him of his rights, by permitting the ditch and property of the company to be sold for taxes, while said defendants had in hand money and means of the company more than sufficient to pay such taxes; that the ditch, etc., was bought in at the tax sale by defendant Fagan in his own name, but with the company’s money; and that he now claims to be.sole owner by virtue of the Sheriff’s deed in pursuance of such sale. There are other averments not material to be stated. Prayer that the sale to Fagan for taxes be set aside, and the deed canceled; that the company be dissolved, an account be taken,'property sold and division made.

A demurrer was filed to the effect, among other things, that the complaint did not state facts sufficient to constitute a cause of action. Overruled. Answer filed denying the allegations of the complaint, but admitting plaintiff to be owner of three and one-half shares of stock, and averring a tender and refusal of those shares.

The case was tried by the Court, and judgment rendered that plaintiff was not entitled to the relief demanded; and that “he have nothing, save and except the three and one-half shares of stock mentioned and set forth in the answer; ” and that defendants have judgment for costs.

Plaintiff, on motion for new trial, filed a statement embracing the testimony and proceedings below, and defendants filed amendments to the statement, but there is nothing in the record showing that the statement was settled, agreed to or signed, either by the parties or the Judge.-

New trial granted in the following language: “If this be an action at law, the judgment fails to award possession of the three and one-half shares to the plaintiff; and if it be a proceeding in equity, then no account has been taken nor ordered.” From the order granting a new trial defendants appeal.