
    Nichols, Shepard & Co., plaintiffs in error, v. John D. Hail, defendant in error.
    1. Practice: final judgment. A'judgment upon the verdict of a jury finding for defendant, for costs only, is not a final judgment.
    2. -: - — . To obtain the review of a case in this court, there must be a final judgment upon the merits of the case, in the court below.
    Error from the district court for Cuming county. Tried below before Griffey, J.
    
      Uriah Bruner, for plaintiffs in error.
    
      Stevenson, Oarrigan <£> Osborn, for defendant in error.
   Gantt, J.

The record in this case shows a trial by jury, a verdict of the jury finding for the defendant, a motion by plaintiffs for a new trial, and it concludes as follows:

“ The court being fully ad'vised in the premises, it is ordered and adjudged that said motion be and the same is hereby overruled, to which ruling of the court the plaintiffs then and there excepted. It is, therefore, ordered and adjudged by the court that the defendant have and recover of plaintiffs judgment upon the verdict of the jury for his costs taxed at $67.93.”

This is not a judgment upon the finding of the jury, disposing of the merits of the case. A final judgment in such case is:

It is considered by the court that the plaintiff take nothing by his writ, and that the defendant go hence without day.” The record entry is simply an assertion that the defendant have and recover of plaintiffs a judgment for his costs.”

As the record contains no final judgment upon which error will lie, the cause must be remanded to the district court, in order that it may be proceeded therein to final judgment, according to law.

Judgment accordingly.  