
    ERROR — FINAL JUDGMENT.
    [Hamilton (1st) Circuit Court,
    March, 1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Florence Reimer et al.
    ■ Overruling Motion for Judgment not Pinal Order.
    The overruling of a motion by the defendant for judgment, accompanied by the withdrawal of a juror and continuance of the cause with leave to the plaintiff to amend his petition if 'he so desires, d-oes not in effect determine the action and prevent a judgment, and is not a final order which may be vacated or modified by a proceeding in error.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 107-127. — Ed.]
    Error to Hamilton common pleas court.
    Jesse Lowman, city solicitor, for plaintiff in error:
    G. W. Harding, for defendants in error ¡
   GIFFEN, J.

This original action was commenced by Florence Reimer against Briggs Cunningham and the city of. Cincinnati to recover damages for a personal injury sustained by reason of the slippery condition of the sidewalk in front of Cunningham’s premises, which the defendants had, as averred, negligently suffered to become, and continue to be, covered with ice. At the conclusion of plaintiff’s testimony each defendant moved the court for judgment, which motion by Cunningham was granted and judgment rendered in his favor. The motion of the city was overruled; but the court of its own motion decided that the petition did not constitute a good cause of action against the city, and after withdrawing a juror continued the cause to enable the plaintiff to prepare an amended petition if she so desired.

Held: No judgment against the city, nor final order within the meaning of Rev. Stat. 6707 (Lan. 10297), was renderéd by the court. It does not appear that any of the orders made “in effect determined the action and prevents a judgment.” The city may upon the final hearing of the cause succeed in its defense. The record therefore discloses no ground for a proceeding in error by the city, and its petition in error will be stricken from the files.. Holbrook v. Connelly, 6 Ohio St. 199; King v. Bell, 36 Ohio St. 460.

Swing and Smith, JJ., concur.  