Haise v. Lorch

Decided April 15, 1873

Mississippi Supreme Court · decided 1873-04-15

Brown, J. Contended, that, although it might be true that a writ of error will not lie from the judgment of the circuit court granting a new trial, defendant in error has waived all benefit which he could have derived from this error, by failing to dismiss the writ of error herein, citing Terry v. Robbins, 5 S. & M. 91; Rev. Code of 1871, § 648; Erigel v. White, 27 Miss. 202.

Relies on Dilworth v. Fooshee

Decided 1873-04-15

Peyton, C. J.:

¶1This is a writ of error prosecuted from an order of the circuit court of Hinds county, granting a new trial.

¶2A writ of error lies only from a final order or decree, except in cases specially authorized by statute. Higginbottom v. Shall, 3 S. & M. 588 ; Terry v. Robbins, 5 ib. 291 ; Stebbins v. Neles, 13 ib. 307 ; Delworth v. Fooshee, 34 Miss. 288.

¶3Hence a writ of error will not lie where exceptions are taken to a judgment granting a new trial, until after a new trial has been had and a final judgment rendered. Bank of Lexington v. Taylor, 2 S. & M. 27 ; Terry v. Robbins, 5 ib. 291.

¶4The writ of error, having been improperly sued out in this case, must be dismissed.