#### Richard Freish, Defendant in Error, v. Joseph Spaulding et al., Plaintiffs in Error.

Gen. No. 14,873.

Appeals and errors—what not final judgment in Municipal Court. If a judgment is entered by the Municipal Court of Chicago and a motion is made in due time to vacate the same, such judgment is not final for purposes of appeal until such motion to vacate has been overruled.

Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.

Heard in this court at the October term, 1908.

Stricken from files.

Opinion filed January 14, 1909.

Cantwell & Roth, for plaintiffs in error.

Carl A. Ross, for defendant in error.

Per Curiam.

The defendant in error has filed a plea to the writ of error, averring, in substance, that the writ was not sued out within 30 days from the rendition of the judgment, as required by section 23 of the municipal court act. The plaintiffs in error have each demurred to the plea.

It is recited in the bill of exceptions that the judgment was rendered in the cause June 9,1908, and that, on the same day, the defendants, plaintiffs in error here, moved the court to vacate the judgment and grant a new trial; whereupon the court ordered that the motion be entered and the cause postponed till July 10, 1908, and that, July 10, 1908, the motion was heard and overruled.

The writ of error was sued out August 10,1908.

The effect of the motion to vacate the judgment and grant a new trial, and the continuance of that motion till July 10, 1908, was to stay the judgment pending the motion. There could be no final judgment till that motion should be determined. Hearson v. Graudine, 87 Ill. 115, 121.

*229See also the following cases: Hibbard v. Mueller, 86 Ill. 256; People ex rel. v. Gary, 105 Ill. 264; Vogelsang v. Fredkyn, 133 Ill. App. 356.

The judgment having become final July 10, 1908, when the motion was denied, the suing out of the writ August 10, 1908, was in apt time. The demurrers of plaintiffs in error to the second plea of defendant in error will be sustained. The first plea of defendant in error will be stricken from the files.

Strilcen from files.