#### Arthur Harsha v. John W. McHenry.

Writ or error—when it will not lie. An order sustaining-exceptions to the report of a commission of surveyors in a proceeding instituted under the act to provide for the permanent survey of lands, approved March 25, 1869, is not a final order, upon which a writ of error will lie.

"Writ oe Error to the Circuit Court of "White county; the Hon. Tazewell B. Tanner, Judge, presiding.

Messrs. Pollock & Keller, and Messrs. McDowell & McClintock, for the plaintiff in error.

Messrs. Orebs & Conger, for the defendant in error.

Per Curiam:

This was a writ of error, sued out to the circuit court of White county, to bring, before us for review an order of that court sustaining exceptions to a report made by a commission of surveyors appointed in a proceeding instituted under the act to provide for the permanent survey of lands, approved March 25, 1869.

It appears, from the record, that, at the November term, 1874, of the court, the court sustained exceptions to the commissioners’ report, and thereupon the petitioner asked leave to amend his petition, which the court allowed, and the cause *279was continued, and, at the April term, 1875, of the court, the proceeding was, on motion of the petitioner, dismissed.

This, in our opinion, ended the case. The order sustaining the exceptions was not a final order, necessarily operating to defeat the further prosecution of the proceedings, for it was competent for the petitioner to still have the report referred hack to the commissioners for correction, or to have new commissioners appointed. See Laws of 1869, Sess. Acts, p. 242, § 4. And a writ of error does not, therefore, lie.

The writ of error is dismissed.

Writ of error dismissed.