HENRY F. WILLIAMS v. JOHN F. CONROY, 52 Cal. 414

stated that it was questionable whether a final -decree had been rendered,, but that they had taken the appeal as matter of precaution. John T. Doyle, for Respondent Conroy. The appeal from the judgment must he dismissed, because no final judgment has been rendered. That from the order denying a new trial is equally futile, because, though such ah order is appealable, yet the motion for ¡i new trial below was made before the trial was concluded. Hence it was necessarily denied, and the order denying it must be affirmed. (1 Hoff. Ch. Pr. 501; 1 Barb. Ch. 330; Lube, Eq. PI. 117; Kane v.

Whittich, 8 Wend. 219; Lawrence v. F. L. & T. Co. 15 How. Pr. E. 57; Swarthout v. Curtis, 4 Conn. 415.) J. M. Seawell, for the Eespondents, the grandchildren of Alice Conroy. John T. Lotts, for the Eespondents, the children of Mrs. Kidwell, and for Mary and Katie Eeilley. W. Mathews, for Eespondent W. J. Ketler. By the Court : The appeal must be dismissed. The decree from which the attempted appeal was taken was not final. By its very terms the decree reserves the distribution of the trust funds and property.

There has been no final disposition of the whole merits of the cause, and it will be absolutely necessary again to bring the cause before the District Court for its final decision. (1 Barb. Ch. 330; Lawrence v. F. L. & T. Co. 15 How. Pr. 57; 4 Comst. 415.) The appeal from the judgment is dismissed, and the order denying a new trial is affirmed. Eemittitur forthwith.'