
    CHARLESTON.
    Bower v. The Virginian Ry. Co.
    Submitted June 3, 1909.
    Decided February 7, 1911.
    Appeal and Ekkok — Decisions Beviewahle — Final Judgment.
    
    If, in the trial of an action upon a demurrer to evidence which is sustained, the court does not render a judgment of nil capiat, but only for costs, there is no final judgment, and this Court is without jurisdiction to review the case.
    Error to Circuit Court, Baleigh County.
    Action by B. L. Bower against the Virginian Bailway Company. On an order sustaining á demurrer to the complaint, plaintiff brings error.
    
      Dismissed.
    
    
      
      File & File, for plaintiff in error.
    
      John Key ancl McQvnnis & Ua,tcher, for defendant in error.
   "WILLIAMS, PRESIDENT:

This is' an action to recover damages for the killing of plaintiff’s horse. It was originally tried before a justice of the peace and plaintiff recovered judgment for '$125, and costs. The defendant appealed to the circuit court of Kaleigh county, and a trial was there had on the 14th day of April, 1908. Defendant demurred to plaintiff’s -evidence, and the jury returned a verdict fixing the amount of damages at $150, subject to the issue of law to be determined by the court. On the 18th of April the court sustained the demurrer and gave costs to defendant, but failed to enter final judgment upon the merits of the case. Following the finding of the court upon the question of law there should have been a judgment of nil capiat. There is" no such judgment, but only a judgment that the defendant recover its costs. There being no final judgment in the action, this Court is without jurisdiction to review it. This case is governed by the following decisions by this Court: DeArmitt v. Town of Whitmer, 63 W. Va, 300; Epstein v. Totten, Id. 603; Ritchie County Bank v. Bee, 60 W. Va, 386; Corley v. Corley, 53 W. Va. 142; and Hannah v. Bank, Id. 83.

The writ of error will be dismissed as improvidently awarded.

Dismissed.  