In this case the plaintiff below obtained a verdict for 258 dollars. A new trial was m.ovedfor by the defendants, and granted by the court. Exception was taken to the opinion of the court, in awarding a new trial, and an appeal in error taken to this court. '
A motion is now made to strike the cause from the docket. The only question presented for consideration is, whether, the cause was not prematurely brought to this court?
We are of opinion that it must be dismissed — there was no final judgment in the cause, nor could there be after the new trial was awarded, until another trial could be had in the court below. (Vide Comyn’s Digest, Pleader 3, B. 7; Joslin vs. Sappington, 1 Ten. Rep. 222.)
Let-the cause be dismissed and remanded to the circuit court, to be tried de novo.