
    Stewart v. Jones, Adm’r.
    Where a petition in the nature of a bill of review or original bill to set aside the judgment of a former term for fraud is filed, and judgment is rendered setting the former judgment aside and granting a new trial, such judgment is interlocutory, and will not be revised on error or appeal uQtil after final judgment; nor, in such a ease, will a writ of error lie to the first judgment after it has been thus set aside, (Note 70.)
    Appeal from Matagorda. Stewart brought suit against Jones and wife.,' as administrators of Kingston, to recover two 'hundred acres of land, and obtained a decree in liis favor, entered up the 7th of October, 1S-1S. Afterwards, Jones was appointed administrator de bonis non of the estate of Kingston, and on the Gtli of December, A. D. 1840, filed his petition to set aside the decree before mentioned. The grounds on which the petitioner sought to set the decree aside and have a new trial granted were that it was obtained by the fraud and collusion of tiie counsel representing the administrators of Kingston and Stewart, in whose favor it was rendered, and without any authority from the administrators ; that it was made by the consent of the counsel without any defense or hearing. There was a verdict in favor of the petitioner on the issues presented, upon which the court entered up a judgment in the following terms: “It is therefore considered by the court that the decree of this court, rendered “ on the, 7th day of October, A. D. 1848. in the case of Warner AVatson Stew- “ art against Phineas James and his wife Catherine James, administratrix of “ the estate of William Kingston, deceased, numbered seven hundred and “ twenty-seven, be and the same is hereby set aside and held for naught; and “ that a new trial in the said suit is hereby granted; and that the said Ilenry “Jones, administrator of the estate of the said Kingston not administered, be “and he
    hereby allowed to make himself'a party defendant in said “ suit; and that the said suit be docketed in favor of Warren Walson Stewart “against Henry Jones, administrator of the estate of William Kingston, de- “ ceased, not administered, and proceed in that style; and that the said Jones “ be and he is allowed to defend said suit.; and, by consent of the parties, said “suit is continued to the next term; and it is further ordered that plaintiff “recover of the defendant Stewart liis e.osts, for which execution may issue.” Tiie records showed that there was a motion for a new trial, which was overruled and notice of appeal given. The administrator of Kingston also prosecuted a writ of error by tiie former judgment, which is disposed of by the opinion in this case. The writ of error was prayed after the judgment in this ease was rendered.
    
      Dennison and Alexander, for appellant.
    ■ McQonigal and Karris Pease, for appellee.
   Lipscomb, J.

A preliminary question, we believe, is decisive of this case. Can we take jurisdiction and revise the judgment rendered in these proceedings setting aside the former judgment and granting a new trial? We believe we cannot, because it is an interlocutory and not a iinal judgment. That the District Court had jurisdiction in this way to grant a new trial was decided by this court at Tyler, April Term, 1852.

If error has intervened in the proceedings it cannot be revised and corrected until after tiie case lias been disposed of by a final judgment in the court below. It is not perceived that tiie plaintiff is placed in a worse condition by setting aside the judgment or decree in this case than if a now trial bad been granted in the ordinary way before the adjournment of the court. In the proceedings to set aside tiie first decree, which we have been considering, the record of that case is made a part of the proceedings in this; and the record shows that it is the same that is now before the court in the ease of Jones, Administrator, v. Stewart, which was brought up by the plaintiff in error after he liad obtained an interlocutory decree setting the judgment aside and granting a new trial, as his counsel alleges, out of abundance of caution, lest liis proceedings-to set aside the decree should ultimately prove unsuccessful, and that the first decree should be sustained after the time for bringing it up by writ of error had been barred. Whatever the consequences t.o him ultimately may be, he has deprived himself of the opportunity of having that judgment or decree revised by procuring it to be set aside and having a new trial granted. It is not now a jndgment'remaining in force in the District Court, ño more so than if it had' been set aside and a new trial granted to him in the ordinary way before the adjournment of the term at which it was rendered. The conclusion therefore is that both eases must be dismissed. We have no jurisdiction until after final judgment, and consent cannot confer jurisdiction. Whether the proceedings under which the first decree was set aside be regarded as a- bill of review or an original bill to set the former judgment aside on the ground that it had been fraudulently and surreptitiously procured, is not material at present and cannot now be inquired into. Its effect was to vacate and set it aside by proceedings having that object directly in view, and it cannot now be considered as a final decree, remaining of record in the court below and subject to revision. If it was erroneous to sot it aside, such error can only be revised after the final disposition of the case in the court below, where the suit is still pending. Both cases must be dismissed at the cost of the party bringing them into this court.

Note 76. — McKean v. Ziller, ante 68.

Appeal dismissed.  