This is in principle not different from the granting a new trial. Now, if the judgment in granting a new trial can he revised at all it cannot be done until after a final judgment rendered by the court in the ease after a second trial. If the result should he unfavorable to the party who lmd been successful in the first, then, in some strong cases, it would be competent for this court to revise the correctness of tiie decision of the court iu setting aside the first judgment.
Because, then, that in tiiis case the writ of error has been sued out whilst the cause is still pending in the court below, the motion to dismiss the writ of error is sustained.
Writ of error dismissed.
Hemphill, Ch. J. I did not sit in this case, and give no opinion.