The opinion of the court was delivered by
The court below rendered an affirmative decree in this cause in favor of appellant, the defendant therein.
After the term of the district court at which said decree was entered, but within five months subsequent to its adjournment, the plaintiff (appellee herein) applied to the court, in the usual manner, to vacate said decree, which was accordingly done. From this order of the district court defendant appeals.
Appellee moves to dismiss the appeal for the reason that the order appealed from was not a final judgment or decision, and, therefore, not reviewable in this court.
In the case of Lilienthal v. Wright, recently decided by this court, ante, p. 1, we held that an order of the district court vacating a judgment at the same term at which it was rendered, was not subject to review in this court. And as we are of the opinion that § 109 of the code extends the time during which the court or judge may grant relief from the effects of judgments, for the period of five mouths after the adjournment of the term when rendered, the motion must be governed by that opinion and decided accordingly.
It follows, therefore, that the motion must be sustained and the appeal dismissed; and it is so ordered.