
    Robert J. Cameron v. Abraham Workman.
    
      A ditch was established by county commissioners under the act of April 12,. 1871, aigytó appeal to the probate court, their action was approved and the dilwfflH&blished by order of the court. On error to the court of common" pleas, some of the grounds of error were found to be well taken and others not, but all the former proceedings were set aside, and the court then made an order, in accordance with the act of March 24, 1864 (S. & S., 321), allowing- the plaintiffs in error to show wherein they had been injured by the erroneous proceedings, but made no'further-order in the case. Held, That the same plaintiffs in error (no order or judgment having been rendered against them under the act), have no ground for prosecuting a petition in error in the district court, nor can they sustain such proceeding in error before the court of common pleas renders a final order or judgment against them.
    Error reserved in the District Court of Holmes county.
    Certain citizens of Holmes county, under the act of April 12, 1811, petitioned the commissioners of the county “ to-locate, establish, and construct a water-course for the purpose of straightening and removing obstructions from the-channel of Xillbuek creek.”
    Robert J. Cameron and others, the plaintiffs, resisted the establishment and construction of the proposed ditch or-water-course; hut such proceedings were had that the commissioners ordered the establishment of the ditch. Erom this order of the commissioners -the plaintiffs appealed to the probate court; and, in that court, moved to-quash the proceedings ; but the motion was overruled, and the court approved the action of the commissioners, and ordered the dstablishment of the ditch. The plaintiffs excepted, and prosecuted their petition in error in the court of common pleas, assigning ten grounds of error, some of which relate to the jurisdiction of the commissioners, and others to the -legality of their proceedings.
    The court of common pleas disposed of the petition in error as follows; “ On consideration whereof the court do-find and decree that there is no error in said record so far as the same is alleged in 1, 2, 8, 4, and so much of the six as does not refer to the insufficiency of the notice given by the auditor, 7, 8, 9,10 numberings of said petition in error. And it is further found and decreed by the court that there is error in said record as pointed out in the 5th and that part of the 6th numbering of said petition which refers to the insufficiency of the notice given by the auditor. It is therefore ordered by the court that the said proceedings be- and the same is hereby set aside, and the said plaintiffs aforesaid be allowed to come in the proper legal proceedings within sixty days from the rising of this court, and show wherein, they or either of them have been injured by reason of the commission of the error so as aforesaid committed in said proceedings. And it is further ordered that for the purpose aforesaid this cause stand continued to the next term of this court, and that the defendants pay the-costs of this action taxed to $-, and in default thereof, that execution issue therefor.”
    Thereupon the plaintiffs prosecuted a petition in error in the district court, assigning the several rulings of the-court of common pleas as grounds of error, and prayed for a reversal of the rulings adverse to the plaintiffs, and a judgment annulling all proceedings of the county commissioners subsequent to the defective notice. The case was reserved in the district court for decision by the supreme-court.
    
      
      Stilwell & Hoagland, for plaintiff in error.
    
      Voorhes & Uhl, for defendants in error.
   Day, C. J.

The plaintiffs, by their petition in error in the court of common pleas, procured the judgment of that court, setting aside all former judgments and orders against "them, and a judgment for their costs. They could ask for nothing more upon that proceeding in error, whatever might be the ground of error relied upon; we need not, therefore, inquire whether the judgment of the common pleas might have been sustained upon other grounds than that on which it was placed by the court.

It is true the court made an order allowing them to pro- ■ ceed and show wherein they had been injured by the erroneous proceedings against them — probably under the idea that the act of March 24, 1864 (S. & S. 321), is applicable to the case. But whether it be so or not, the court made no final order in the case, under the statute or otherwise, •to the prejudice of the plaintiffs. It may never do so. If it does, some of the questions discussed in argument may again come in review; but until such final order is made or judgment rendered against them, they have no ground for a petition in error. It does not lie for the review of mere preliminary or interlocutory orders. As the case now stands, therefore, the petition in error must be dismissed.

Nor can we now determine the question made in argument as to whether the act of 1864 applies to the case; for no final order or judgment, based upon it, has yet been made or rendered in the case. The question can be judicially determined only when it is thus presented. An opinion now expressed would at most be merely a dictum, which could not legitimately affect the case.

Petition dismissed.  