
    John Hobbs v. Margaret Beckwith.
    "Writ of certiorari to the district court of Knox county.
    The facts of the case are as follows :
    On the 9th of August, 1852, Margaret Beckwith, the defendant in certiorari, made a complaint in bastardy against John Hobbs, the plaintiff in certiorari, before a justice of the peace of Knox county. Proceedings were regularly had under said complaint, and at the November term, 1852, of Knox common pleas, a trial of said case was had, in which the jury failed to agree. The case was subsequently continued until the August term, 1853, at which Dime plaintiff in certiorari, on leave, withdrew his plea of “not guilty,” and filed a motion to dismiss the proceedings, assigning as cause therefor:
    1. That the complaint of the said Margaret is not within the statute.
    2. That the said Margaret having made complaint, in accordance with the provisions of the statute, against G-. *W. Stahl, as [-253 the father of her bastard, she is estopped from making complaint igainst John Hobbs, as the father of the same child.
    
      In support of this motion, counsel for plaintiff in certiorari gave In evidence the complaint made by the said Margaret Beckwith "before Justice Cochran, on the 7th day of August, 1852, charging •George W. Stahl to be the father of her child, and also sundry •depositions.
    To resist this motion the said Margaret gave in evidence her .•affidavit, made on the 9th of August, 1852, before Justice Cotton, charging said Hobbs as being the father of said child, the examination thereunder, and also sundry depositions.
    It was also admitted, on the hearing of the motion, that the affidavit against Stahl was left in possession of the attorney for .the defendant in certiorari, immediately upion its being made, to ■enable him to settle said complaint, if practicable, and continued in his possession, and no proceedings of any kind were ever had •upon said accusation against said Stahl.
    The motion to dismiss was overruled; whereupon, plaintiff in ■certiorari excepted to the ruling and judgment of the court, and removed the case, upon certiorari, to the district court of Knox ■county, and at the May term, 1855, of said court, the case was again heard, and the judgment of the common pleas affirmed. The plaintiff now brings the case into this court, a certiorari having been allowed by one of the judges thereof during vacation.
    
      Samuel Israel, for plaintiff in certiorari.
    
      Curtis & Scribner, for defendant.
   Bartley, C. J.

The writ of certiorari being abolished by the •264] ^code of civil procedure, a final judgment or order in proceedings under the act for the maintenance and support of Ilegitímate ■children, must be reviewed on petition in error, instead of certiorari.

The provision of the code excepting from its operation proceedings under the bastardy act, has reference to proceedings under ■that act strictly, and not to proceedings to review them on error.

An order in the progress of a suit, and before judgment, to bo final and lay the foundation for petition in error, must be such as •determines the action and prevents a judgment.

Dismissed at the cost of plaintiff in certiorari.

Swan, Brinkerhoee, Bowen, and Scott, JJ., concurred. ’  