
    Edwin Moody vs. The State of Mississippi.
    In a suit brought in the superior court of chancery against the state, for the value of work and labor done, and materials furnished in the erection of the State-house, the chancellor ordered an issue to the circuit court of Hinds county, to ascertain the amount due; the jury found a verdict in favor of complainant, to which no exception was taken in the circuit court by either side, though the state moved unsuccessfully there for a new trial; the chancellor, however, set the verdict aside on its return to his court, and ordered a new trial at his bar, from which order the complainant prayed, but did not prosecute, an appeal; the second issue was tried at the bar of the chancery court, and resulted in a second verdict for complainant, which the chancellor also set aside, and directed a new trial; to this the complainant excepted, and embodied the evidence in a bill of exceptions, and prayed, but the chancellor refused, an appeal: Held, first, that the appeal being from the refusal to confirm the second verdict, and the allowance of the second new trial, the high court could not inquire into the propriety of the order of the chancellor setting aside the first verdict.
    Held further, that the whole appeal was premature ; there was no decree either final or interlocutory appealed from; the power of the chancellor to grant the new trial was unquestioned; its rightful exercise was another matter, which could only be inquired into on the final determination of the case; perhaps both parties might be satisfied with the next verdict.
    On appeal from the superior court of chancery ; Hon. Stephen Cocke, chancellor.
    The facts will be found stated in the opinion.
    
      Lea, for appellant.
    
      Clifton, on same side.
    
      Glenn, attorney-general, for the state.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the superior court of chancery by the appellant, to recover damages from the state, for an alleged breach of contract in reference to building the capítol of the state. The bill was filed in 1838; issues were made up and directed to be tried in the circuit court of Hinds county, subject to the rules of law, and the regulations of the court. At the March term, 1842,- the issues were tried, and a verdict rendered in behalf of the complainant for $26,936. A motion was made in the circuit court for a new trial, which was overruled, but no bill of exceptions was taken. The verdict, however, was set aside by the chancellor, and another trial of the issues directed to be had at the bar of the chancery court, at the January term, 1S45. The complainant being dissatisfied with the order granting a new trial, prayed an appeal to this court, which was refused by the chancellor. No farther steps were taken in regard to this appeal.

In February, 1847, the new trial was had, and a verdict rendered for the complainant for the sum of $16,769.50. The complainant moved for a confirmation of this verdict, and the defendant for another trial. Upon consideration of these motions, the chancellor directed the verdict to be set aside, and another trial of the issues to be had. A bill of exceptions was thereupon filed setting out the testimony, and this appeal was taken “from the order refusing to confirm the verdict of the jury, and ordering a new trial.”

We have been thus careful in setting out the proceedings, and the several orders, that it might be clearly seen what was the matter appealed from, and consequently what is in this court to be decided.

It is urged here with great zeal and earnestness, that the act of the chancellor in setting aside the first verdict was arbitrary and unauthorized, and that this court ought now to disregard all the subsequent proceedings, and direct a final decree'to be entered in accordance with that verdict. The plain answer to this argument is, that this order of the chancellor thus complained of, has in no way been brought before this court. Yfe have, therefore, no power to pass upon it. It is true, an appeal was prayed, but it was refused by the chancellor, and no effort was made, in any other mode, to get it into this court. The party proceeded to another trial, and being dissatisfied with the action of the chancellor, in reference to the last trial, he took an appeal from the order “refusing to confirm the verdict, and directing another trial.” This appeal, in its terms, -attempts to bring up nothing but this order, and if we were to consider of any thing else, it would be of something not appealed from.

The next question which meets us is, whether the whole appeal is not premature. There is no decree of the chancery court, either interlocutory or final. There is nothing but an order setting aside a verdict, and directing a new trial. Had the court the power to make such order? The statute of 1846 directs all issues in the chancery court to be tried in that court, with a single exception, and provides, “ that the verdict of the jury shall be conclusive of the facts found, subject to the rules and regulations of a court of law. Hutch. Code, 7S6.

The power to set aside a verdict and grant a new trial, is one of the unquestionable rules of a court of law, and is exercised daily without challenge. That the power existed in the chancellor is thus beyond dispute; its rightful exercise is another matter. Can that question be now entertained?

It is settled in this court, that neither an appeal, nor a writ of error will lie, from a court of law, from an order granting or refusing to grant a new trial, until there has been a final judgment in the court below.- After such judgment, the case may be brought up, but not before. Bank of Lexington v. Taylor, 2 S. & M. 28; Terry v. Robins, 5 Ib. 291. All parties might be satisfied with the result of the next trial. But the legal principle on which the rule rests, is, that there is no judgment of the court, from which the writ of error will lie.

Is the same rule applicable in chancery? We think it is, because the statute makes the verdict subject to the rules of a court of law; and because, though the verdict'may become the basis of the decree, yet until the court adopts it, and founds a a decree upon it, there is no decree from which an appeal can be sustained. See Stebbins v. Niles, ante, 307. Here there was no decree, either interlocutory or final. The consequence is, that the appeal was premature, and must be dismissed, and the cause remanded for further proceedings.  