
    HENRY KROEGER, Plaintiff in Error, v. TOM DASH, Defendant in Error.
    Kansas City Court of Appeals,
    January 8, 1900.
    Appellate Practice: GRANTING NEW TRIAL: APPEAL Y. WRIT OE -ERROR. A writ of error does not lie to review the action of the trial court in ganting a new trial though an appeal does. Cases considered and distinguished.
    Error to the Oole Circuit Court. — Hon. D. W. Bhachelford, J udge.
    Writ dismissed.
    
      Edwards & Edwards for plaintiff in error.
    (1) Does a writ of error lie from the order granting a new -trial or must it be by appeal ? If this court or the supreme court have passed upon this first question directly, we are net aware of it, hut -it has construed a similar statute, to wit, section 2253, of the Revised Statutes 1889, and the reason in thlat case well applies here. Eing v. Bailway, 112 Mo. 220. (2) Having appeared to the merits it is now too late to object to the manner of getting into court. Crosby v. Clary, 43 Mo. App. 222, and authorities cited.
    
      Pope & Belch for defendant in error.
    Prior to the amendment to section 2246, Eevised Statutes 1889, approved April 18, 1891, p. 70, neither appeal nor writ of error would lie from an order granting a new trial. Since then 'am appeal only will lie, because authority for such was granted by that act. Our position is that the writ of error sued out in this case should be dismissed. Writs of errors should issue upon final judgment only. Eevised Statutes 1889, section 2273; Martin v. Hays, 5 Mo. 62; Horr v. Knighton, 9 Mo. 180; Young v. Hudson, 99 Mo. 102; Duncan v. Forgey, 25 Mo. App. 310; Wirt v. Dinam, 41 Mo. App. 236; Eeady v. Smith, 141 Mo. 305.
   ELLISON, J.

This is 'am action of replevin. On a trial in the circuit court there was a verdict for the plaintiff. After-wards defendant filed a motion for new trial which being sustained, the verdict was set 'aside 'and a new trial granted. Plaintiff did not appeal, 'but afterwards sued out a writ of error in this court 'amid brought 'the case here by such writ of error. The question is presented, whether a writ of error can be 'had on a judgment granting a new trial.

By the terms of section 2246, Eevised Statutes 1889, an appeal could only be taken from the final judgment in‘a case. And by the terms of section 2273, writs of error could only be issued to review a final judgment. By the laws of. 1891, amended by the laws of 1895, section 2246 was amended ho as to allow an appeal from an order granting a new trial. But section 2273 stands unamended, and writs of error can still only issue in eases of final judgment. It has all along been held-that an order granting a new trial wias not a final judgment. So therefore, on the face of the statute plaintiff is not entitled to 'a writ of error to review the action of the trial court in granting a new trial.

But plaintiff argues that the lawmaking power evidently intended to grant the right by writ of error along with the right of appeal. There is "no evidence of such intention. The intention appears to be to restrict tbe right to an appeal; for the appeal section is amended by name and the writ of 'error section is left as it was. There may be many reasons suggested Why 'an appeal may be, and a writ of error may not be bad: A writ of error is a new and independent action (Macklin v. Allenberg, 100 Mo. 337) and it may be issued at any time within three years, 'and might thus evidently embarrass tbe procedure in cases which had been arrested by the ‘granting of a new trial. The cases of Young v. Hudson, 99 Mo. 102, and Duncan v. Forgey, 25 Mo. App. 310, bear resemblance to this and we consider them authority for our position.

The snpreane court has decided that writs of error may he taken and heard on what is known as the short form— a certificate of judgment and date of entry, etc., under section 2253, Revised Statutes 1889; Ring v. Railway, 112 Mo. 220, But that case does not justify the conclusion plaintiff draws from it. That case is based on tbe terms of the statute itself which plainly show that a writ of error was intended to he included with the right of appeal. And so the same may be said of State ex rel. v. Railway, 149 Mo. 104.

It follows that plaintiff had no right to a writ of error for review of the action of the trial court in granting a new trial and the writ will be dismissed.

All concur.  