
    Cyrus M. Conord v. Edwin Runnels.
    1. An order of court granting or overruling a motion to set aside the verdict of a jury and grant a new trial, is not a final judgment or order, for the reversal of which a petition in error can he prosecuted before the final disposition of the case.
    
      2. A motion for a new trial is addressed to the sound discretion of the court, and where such a new trial has been allowed and had, the order allowing it can not he assigned as error.
    Motion for leave to file a petition in error from Licking County.
    In the Common Pleas the plaintiff: took exception to the order of the court setting aside the verdict of the jury and granting a new trial, and before any new trial was had, prosecuted his petition in error in the District Court, to reverse the order allowing such new trial. The District Court dismissed the petition in error as being prematurely filed. A new trial was then had in the Common Pleas, which resulted in a verdict upon which final judgment was entered. The plaintiff then prosecuted a second petition in error, to reverse said final judgment, and to obtain a final judgment upon the first verdict so -set aside. Upon hearing of this last petition, the District Court affirmed the judgment and proceedings of the Common Pleas, and the plaintiff now seeks to reverse this judgment of the District Court.
    
      A. B. Barrick and C. H. Kibler, for the motion.
    
      Smythe & Sprague, contra.
   By the Court.

We see no error in the judgment of the District Court. The first petition in error was filed before any final judgment had been entered in the cause, and was-rightfully dismissed as having been prematurely filed. The second petition in error was not prematurely tiled, but we think the ground of supposed error on which it is made forest can not be sustained. A motion for a new trial is addressed to the sound discretion of the court; and although it is well-settled law that error will lie, in a proper case, where a new trial has been refused, we know of no case in which it has been held to lie where a new trial has been-allowed and had, and where the court had power to grant a new trial, and its order granting such new trial is not made ground of error by statutory provision.

Motion overruled,.  