The opinion
Brown, President.
This is a .supersedeas to the judgment of the circuit court of Mason county setting aside a judgment and awarding a new trial on the motion of the defendant.
The case was tried by the court in lieu of a jury. The plaintiff excepted to the ruling of the court setting aside the *10 judgment and awarding a new trial, and the bill of exceptions sets out tbe facts, and grounds upon which the court based its action. The defendant in error now moves to dismiss the supersedeas on the ground that there is no jurisdiction of the case, and alleges for cause that the appeal is from the interlocutory order and not from any final judgment, and that the cause is still pending and undetermined in the circuit court. And it is certain that as the law was at the time the supersedeas was allowed no appeal lay in the case. 1 Rob., 34 ; Code 1860, chap. 182, sec. 2. But by the act of .February 29th, 1868, the law was changed and a writ of error or supersedeas allowed in just such case. What effect, therefore, can that act have, if any, on this case ?
• If a suit were brought on a note before it was due the action could not be sustained though it might have become due before trial, and I see no difference in principle with the case here. I think, therefore, that the motion of the defendant in error must be sustained and the supersedeas dismissed as improvidently allowed, and at the costs of the plaintiff in error, but without prejudice to the plaintiff in-error in any proceeding he be advised to take in the premises hereafter.
Judge Maxwell concurred.
Motion sustained and supersedeas dismissed.