
    Commonwealth v. Brown and Kennedy.
    Criminal Law — Practice—Appeal.
    No appeal can be taken from the action of the trial court in arbitrarily striking a criminal cause from the docket, where no final judgment of any kind was entered in such court.
    APPEAL PROM HARDIN CIRCUIT COURT.
    January 5, 1877.
   Opinion by

Judge Elliott :

The appellees having been indicted in the Hardin Circuit Court for selling ardent spirits to a minor, appear to. the indictment and on their motion the same was dismissed. From the judgment dismissing the indictment the commonwealth, appealed, and this court reversed the judgment and sent it back for trial; and the special judge who was elected to try it on its return, in disregard of the authority of this court, refused to try the case, but struck it from the docket, and therefore there was no judgment of the court below from which an appeal could be taken. The case has not been tried as directed by the mandate of this court, but has merely been stricken from the docket, and until there has been some judgment in it no appeal will lie to this court. Besides, the record was not filed in the clerk’s office of this court within sixty days from the making the order striking it from the docket, wherefore the appeal is dismissed.  