Action to recover tbe value oí the services of the plaintiff, a physician, rendered the father of the defendant. There were findings for the plaintiff and the defendant appeals from the order denying his motion for a new trial.

The right of recovery is based upon G-. S. 1913, § 3067, which makes the relatives of a poor person unable to earn a livelihood liable for his support, they “having sufficient ability,” and the duty is cast first upon the children. The statute has been construed in several cases. Hendrickson v. Town of Queen, 149 Minn. 79, 182 N. W. 952, and cases cited. The court finds that the defendant at all times was able to care for his father. Such a finding is essential to a recovery. The burden of proving ability is upon the one asserting liability. We find no evidence in support of it and the finding is not sustained.

Some other questions are argued in the briefs. Most of them are not raised by the record.

Order reversed.