It is entirely clear that this appeal cannot be sustained. It is not an appeal from a judgment, but from an order. It therefore is not embraced by the first subdivision of section eleven of the Code. The order does not in *Page 620 effect determine the action; on the contrary, it allows the action to proceed, without professing to touch, by decision, the merits. The second subdivision, therefore, does not reach it. Nor is it a final order, affecting a substantial right, made upon a summary application in an action after judgment under the third subdivision. It is not final, but directs a new trial.

The appeal must therefore be dismissed.

All the judges concurring,

Appeal dismissed.