Strother v. Missouri, Kansas & Texas Railroad

ROY, C. — Homer S. Martin recovered judgment against the defendant in error for $14,000 as damages for personal injuries. A motion for a new trial on the part of the defendant was sustained. From -the order sustaining that motion the plaintiff came to this court on a writ of error. Since the writ issued the [431] plaintiff died and the cause has been revived in the name of his administrator. Defendant in error makes the point that the propriety of the trial court’s action in sustaining a motion for a new trial cannot he tested under a writ of error. We think the point well taken. Section 2054, Eevised Statutes 1909, provides for a writ of error only on a final judgment. Section 2038 gives the right to appeal from an order granting a new trial from an interlocutory judgment in an action of partition and in other cases there mentioned. Those sections were construed in Kroeger v. Dash, 82 Mo. App. 332, in a short hut sound opinion, holding that a writ of error cannot be brought on an order granting a new trial for the reason that such order is not a final judgment. That opinion was cited with approval by this court in Padgett v. Smith, 205 Mo. 122. The writ of error issued herein is quashed. Williams, C., concurs. PEE CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court. All the judges concur.