#### State of Minnesota *ex rel.*City of Duluth *vs.*District Court of St. Louis County.

Argued Oct. 24, 1894.

Writ quashed Oct. 26, 1894.

No. 8931.

Certiorari lies only after final judgment in the lower court.

A writ of certiorari will not lie until there has been a final decision of the matter by the court before whom it is pending, and against which court the application asks that it shall be issued.

*Certiorari*issued April 14, 1894, by this court, on the relation of the City of Duluth, to the District Court of St. Louis County to certify and return to this court the record and proceedings in that court in the matter of the appeal of the executors of the will of George W. Norton, deceased, from the award of damages for opening a street.

The Village of West Duluth commenced proceedings in 1893, under Laws 1891, ch. 146, subch. 8, to condemn for street purposes a strip of land in that village eighty feet wide and about two hundred rods long across the southwest quarter of the southwest quarter of section thirteen (13), and the northeast quarter of the northeast quarter of section twenty three, and Lot two (2) in section twenty four (24), T. 49, R. 15. Commissioners were appointed to assess the damages to the land owners. They viewed the premises and made their report and it was confirmed by the village council. The executors of the will of George W. Norton, deceased, appealed October 11, 1893, to the District Court from the award of damages and the appeal was tried March 1, 1894, before a jury and a verdict rendered that the benefits were equal to the damages. The court on motion of the executors set aside this verdict March 23, 1894, and granted a new trial. The Village of West Duluth *535was on January 1, 1894, annexed to and became a part of tbe City of Duluth, and the City was substituted April 11, 1894, as respondent in the place of the Village. Laws 1891, ch. 146, subch. 8, provides that the judgment of the District Court shall be final. As no appeal could be taken to this court from this order granting a new trial, the City of Duluth applied to this court *ex parte*April 14, 1894, for a writ of *certiorari*and it was granted. The executors now move to quash the writ on the ground that no final judgment had been rendered in the District Court.

*Carey, Agatin á Carey,*for Executors.

*H. H. Phelps,*for Duluth City.

Buck, J.

In this case a writ of *certiorari*was granted on the *ex parte*application of the petitioner, directed to the judges of the District Court of St. Louis county, Requiring a return to be made to this court of the proceedings in said District Court in condemnation proceedings where the verdict of a jury was set aside and a new trial granted. It appears from the return that the city of Duluth is attempting to lay out a street within its corporate limits, and that, upon a claim for damages being made by the owner of the land over which the street was sought to be laid, the matter was tried in the District Court of St. Louis county, and a verdict rendered for the city, whereupon a motion for a new trial was made by the landowner, and granted by the court.

The relator the City of Duluth seeks by this writ to have the order of the court below, granting a new trial, reversed or modified, and the landowners in behalf of the respondent move to quash the writ upon the ground that it was prematurely and improvidently issued. We are of the opinion that the motion should be granted. It is a general rule of law, applicable to this case, that a writ of certiorari will not lie until there has been a final decision of the matter by the court before whom it is pending, and against which court the application asks it shall be issued. *State ex rel.*v. *District Court of Ramsey Co.,*44 Minn. 244, (46 N. W. 349.)

Writ quashed.

Gileillan, 0. J., absent, took no part.

(Opinion published 60 N. W. 546.)