After a jury had been impaneled, counsel for the respective parties stated their case and the facts they expected the evidence to show to the jury, at the close of which plaintiff moved the court for judgment, which motion was sustained. This wag error. In Sullivan v. Williamson et al., 21 Okla. 844, 98 Pac. 1001, it is said:

“The petition stating a good cause of action, it was error for the court below to sustain a motion to dismiss the cause and render judgment against the plaintiff upon the opening statement of his counsel. ‘Such a motion will not be granted merely because counsel fails to state in his opening statement facts sufficient to constitute a cause of action.’ ”

*647 No motion for new trial was necessary to' present this question to the court. Wagner v. A., T. & S. F. Ry. Co., 73 Kan. 283, 85 Pac. 299; Cowart v. Parker-Washington Co. et al., 40 Okla. 56, 136 Pac. 153; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okla. 156, 149 Pac. 1136.

For the reasons stated, the order dismissing this case is set aside, the cause reinstated, and reversed and remanded.