#### Lovesee, Plaintiff in error, vs. The State, Defendant in error.

*September 1I¡.*—

November 27, *1908.*

*■Criminal law and practice: Review: Writ of error: Amendment: Order denying new trial: Review by writ of error before judgment: Statutes.*

1. In. a criminal cause the fact that no judgment has been entered is of itself no sufficient ground for refusing to consider a writ of error, for the supreme court has power to amend the writ so as to permit a review of proper orders.

2. The'proceedings under see. 4719, Stats. (1898), whereby the defendant in a criminal cause is given the right to apply for a new trial and on its denial is entitled to have errors alleged to have been committed on the trial and embraced in the application reviewed by writ of error, differ from the course of reviewing a motion for a new trial upon the court’s minutes under sec. 4724; hence a motion to set aside a verdict and grant a new trial upon the minutes of the court upon the grounds that the verdict was contrary to law, against the evidence and not supported thereby, and also upon the ground that the verdict was perverse and did not do substantial justice to the defendant, presents no grounds under sec. 4719 for the issuance of a writ of error before judgment to review the order refusing defendant a new trial.

ERROR to review an order of tlie circuit court for Clark county: Tames O’Neill, Circuit Judge.

*Dismissed.*

The cause was originally argued September 14, 1908.

Eor the plaintiff in error there was a brief by *Homer G. Ciarle*and *J. B. Sturdevant,*and oral argument by *Mr. Ciarle.*

Eor the defendant in error there was a brief by the *Attorney General*and *F. T. Tucleer,*assistant attorney general, and oral argument by *Mr. Tucleer.*

On September 29, 1908, a reargument was ordered on the following question: “There being no final judgment in the trial court, must not the writ of error be dismissed for want of jurisdiction?”

*95The cause was reargued October 24, 1908, and the following opinion was filed November 27, 1908:

Sibbeckek, J.

The plaintiff in error was tried in circuit court on an information charging him in separate counts with adultery and fornication. He was convicted of adultery. The court denied a motion to set aside the verdict and to grant a new trial upon the minutes of the court upon' the grounds that the verdict was contrary to law, against the evidence and not supported thereby, and also upon the ground that the verdict was perverse and did not do substantial justice to the defendant. Ho judgment was rendered and no stay of proceedings was entered in the trial court.

The writ of error in this case refers in terms to the “rendition of judgment,” but in fact no judgment has been rendered, and plaintiff in error seeks to have the case reviewed on exceptions to rulings and directions made in the course ■of the trial, including the refusal of the court to grant a new trial upon its minutes before the entry of judgment by the trial court.

The fact that no judgment has been entered is of itself no sufficient ground for refusing to consider the writ of ■error, for the court has power to amend the writ so as to permit a review of proper orders, as was declared in *Ullman v. State,*122 Wis. 447, 100 N. W. 818. We are led to inquire whether there is any order in this case for a review of which a writ of error will lie.

As stated above, the plaintiff in error assails the rulings and directions of the court which were made in the course of the trial and which have been incorporated in the bill of exceptions and made part of the record. The plaintiff in error contends that the refusal of the court to grant his motion for a new trial upon the minutes of the court on the grounds alleged is a denial of an application for a new trial under sec. 4719, Stats. (1898), and that the denial thereof *96entitles him to have the alleged errors committed on the trial and embraced in such motion reviewed by this court under-sec. 4719, Stats. (1898), before his case has gone to judgment in the trial court’. The history of sec. 4719, Stats. (1898), and the manifest purpose in amending it after the decision in *Jackson v. State,*92 Wis. 422, 66 N. W. 393, is fully set forth in the *Oilman Oase.*From the context of this section it is obvious that the legislature intended to grant the defendant in a criminal cause the right to apply to the-circuit court for a new trial by petition or .motion in writing signed by himself or his attorney, and the proceeding, provided by this section was evidently intended to permit a defendant in a criminal case to bring to the attention of the-trial court, by written petition or motion in the manner prescribed, the grounds upon which he seeks to have his case-reviewed. This differs from the course of reviewing a motion for a new trial upon the court’s minutes. This intent of the statute is shown by the provisions that the application, must specifically embody the grounds for the motion; that it must be filed with the clerk of the court at least twenty-days before the time set for hearing, unless a shoider time has been fixed by order of the court; and that affidavits may be used in support of the written petition or motion. All of these provisions are inapplicable to a motion for a new trial-upon the minutes of the court. By such a motion exceptions to rulings and directions in the course of the trial maybe reviewed, and, if the court denies the relief, then the defendant is entitled to a review of all such rulings and directions by writ of error, under sec. 4724, Stats. (1898). See,, also, sec. 2878, Stats. (1898). Writs in such cases, how-over, do not lie until judgment has been entered by the triah court. *Jaclcson v. State, supra; State v. Clifford,*58 Wis. 113, 16 N. W. 25; *State v. Compton,*84 Wis. 355, 54 N.W. 578. An examination of the case presented to this court shows that the plaintiff in error seeks, under the provisions-*97of see. 4719, Stats. (1898), to have this court review his exceptions to the ruling denying his motion for- a new trial upon the minutes of the court as preserved in the record hy the hill of exceptions. As we have pointed out, the proceeding provided by this section was not intended to afford a review of such a motion. Consequently no grounds are presented under sec. 4719, Stats. (1898), for the issuance of a writ of error to review the order refusing the defendant a new trial.

Since the action has not gone to judgment, it follows that the writ of this court was prematurely issued, and it must he dismissed.

*By the Court.*— It is so ordered.