The foregoing case presents error from the district court of Garvin county. From the petition in error it appears that on the 14th day of September, 1908, the plaintiff in error secured an order vacating a judgment obtained by defendant in error at a former term of the district court in that county. The plaintiff in error, who was plaintiff below in that court, filed his verified motion to set aside the said judgment, to enable him to make his defense, which, on being heard by the court was granted, and the judgment vacated and set aside. The defendant thereupon moved the court for a new trial of the. issues made, on the motion, and on it being denied, has attempted to bring the case to this court for review.

Counsel for defendant has filed a motion to dismiss the pe^ tition in error, for the reason that the order appealed from was not final, but was 'interlocutory, and that no appeal would lie to this court therefrom.' This motion must'be sustained, upon the authority óf the ease of Town of Byars v. Sprouls, ante, p. 299, [*704] 103 Pac. 1038, an opinion delivered by this court July 13, 1909, and the ease of Moody & Company v. Freeman & Williams, ante, p. 701, 104 Pac. 30, delivered at this term of court.