dissenting:
I concede that where a circuit court renders a final judgment upon insufficient evidence, the only mode of correcting the error is by preserving the evidence in a bill of exceptions, and then taking the record, by appeal or writ of error, before the proper appellate tribunal for review. The circuit court retains no jurisdiction over a case after the expiration of the term at which final, judgment is rendered, and hence has no jurisdiction, after that term, to correct it in a matter of substance. But a final judgment is one that puts an end to the suit, at least until it shall be reversed or set aside. 3 Blackstone’s Com. (Sharswood’s ed.) 398, *399; Freeman on Judgments, sec. 21; 7 Am. and Eng. Ency. of Law, p. 967. On the other hand, a judgment which is rendered as to some steps in the cause, without determining the rights of the parties in that suit, but leaving them to be determined by a further judgment, is interlocutory, (Freeman on Judgments, sec. 31,) and therefore an order granting a new trial in an action of ejectment which finally determines no rights of the parties in that suit, is not a final judgment. (Williams et al. v. LaValle et al. 64 Ill. 110.) Analogous cases are, Bolton v. McKinley, 22 Ill. 203, holding that a judgment vacating and setting aside a judgment entered up as by confession is not a final judgment; and Walker v. Oliver, 63 Ill. 199, holding that a judgment vacating and setting aside a judgment by default is not a final judgment. And to like effect are also Branham v. Fort Wayne and S. Railroad Co. 7 Ind. 524, and Spaulding v. Thompson, 12 id. 477.
The reference in the opinion of the majority of the court, to Freeman on Judgments, discloses nothing in conflict with this principle. He is speaking of an action on bill or petition to set aside a judgment, and, of course, there, as he says, “the whole scope and object of the suit being to vacate the former judgment and to procure a new trial,- and the issues all being made up for that purpose, their determination necessarily puts an end to the suit,” (sec. 18,) and that is all that is held in the authorities cited" to sustain that statement. (Belt v. Davis, 1 Cal. 134; McCall v. Hitchcock, 7 Bush, 615.) There is here no suit to vacate a former judgment—there is simply an order in a suit in which a former judgment was rendered, vacating and setting aside that judgment, and suspending final judgment in the suit until after a subsequent trial shall be had. Until final judgment shall be rendered in the suit the whole record is before the court, and an interlocutory order or judgment may be corrected at any time. Ogle v. Lee, 2 Cranch, 33; Brush v. Seguin et al. 24 Ill. 254; Constantine v. Foster, 57 id. 36; Kilmer v. The People exrel. 106 id. 529; Fort Dearborn Lodge v. Klein, 115 id., 177; Setzke v. Setzke, 121 id. 30.
In my opinion, the evidence shows that the costs were not all paid within the year, and hence the order granting a newr trial was erroneously entered. The right to a new trial in such cases is purely statutory. We are not authorized to go beyond the letter of the statute, and he governed by what we may deem the peculiar equities in the case. What it says shall be done, must be done; and until that is done the court is without power to grant a new trial. Oetgen v. Ross, 36 Ill. 335; Emmons v. Bishop, 14 id. 152; Goodhue v. Baker, 22 id. 262; Pugh v. Reat, 107 id. 440. See, also, Dawson v. Shillock, 29 Minn. 89.
I therefore dissent from so much of the opinion of the majority of the-court as holds that the court had authority to grant a new trial in the case.