
    CHARLESTON.
    Samuel P. Woodburn v. E. C. Jones
    (No. 5303)
    Submitted October 6, 1925.
    Decided September 21, 1926.
    Appeal and Error—
    A judgment which merely gives costs to one of the parties, without adjudicating the merits of the controversy, is not appealable.
    (Appeal and Error, 3 C. X § 374.)
    Note : Parenthetical references by Editors, C. J. — Cyc. Not part of syllabi.)
    Error to Circuit Court, Tyler County.
    Action by Samuel P. Woodburn against E. C. Jones for malpractice. Judgment for defendant, and plaintiff brings error.
    
      Dismissed as improvidently awarded.
    
    
      Underwood & Moore, for plaintiff in error.
    
      M. II. Wills for defendant in error.
   Litz, President :

This is an 'action of trespass on the case for malpractice. On the trial the court directed a verdict for the defendant, and entered judgment for costs in favor of the defendant. Prom the judgment the plaintiff obtained a writ of error. The defendant has filed a motion to dismiss the writ as having been improvidently awarded.

As the trial court did not enter a judgment of nil capia! the order was not final, and the motion must be sustained. Hunt v. Mounts, 96 W. Va. 143; Kirk v. Camden Interstate Railway Co., 66 W. Va. 486.

Dismissed as improvidently awarded.  