Martin v. Hays, 5 Mo. 62

Edwards, Judge, delivered the opinion of the court. Martin brought an action of debt against Hays. Verdict and judgment were for plaintiff. Defendant moved for anew trial. The court granted it. To the decision-of the court in granting a new trial the plaintiff excepted, and sued out his writ of error. The defendant now-moves this court to dismiss the writ of error in this case, “because there has been no final judgment or decision of said cause in the circuit court. The plaintiff relies on the case of Johnson v. Thompson, decided by this court, 3 Mo. D.

In this case the court decided, that where the circuit court refuses, improperly, to set aside a nonsuit, or where a judgment of nonsuit well taken is improperly set aside, where a continuance has been improperly re fused, or a new- trial improperly refused or granted, the party injured may seek redress in this court. When the facts are properly preserved m such cases, this court can see whether the circuit court has exercised its discretion soundly.

If that has not been-done, we have the means of redressing the wrong by reversing the judgment, and placing the parties upon the grounds they were complied to abandon, or were not permitted to occupy.. Grant what is here said by the coprt, it still remains-to be determined at what time the party injured shall be permitted to seek his re(h’ess by writ of error. The first

section of the act to regulate practice in the supreme court, provides, that “writs of error upon any .final judgment or decision of any circuit court, in all cases, are writs of right. ” The writ of error in this case was sued out upon the decision of the circuit court in granting a new trial. V/as this a final decision? A final decision would divest the court of any further control over the case. It would dismiss the cause from court. Did the court divest itself of further control over the case by,gi anting a new trial? Did this decision dismiss the case from court? Clearly not.

When the verdict was set aside the cause stood upon its original ground— open for trial. Then it was not finally decided, but was still pending. The writ of error was taken before a final judgment or decision was rendered in the case; and therefore, improperly. The motion of the defendant is sustained. The writ ,of error is dismissed»