— Homer S. Martin recovered judgment against the defendant in error for $14,000 as damages for personal injuries. A motion for a new trial on the part of the defendant was sustained. From -the order sustaining that motion the plaintiff came to this court on a writ of error. Since the writ issued the *431plaintiff died and the cause has been revived in the name of his administrator.

Defendant in error makes the point that the propriety of the trial court’s action in sustaining a motion for a new trial cannot he tested under a writ of error. We think the point well taken. Section 2054, Eevised Statutes 1909, provides for a writ of error only on a final judgment. Section 2038 gives the right to appeal from an order granting a new trial from an interlocutory judgment in an action of partition and in other cases there mentioned. Those sections were construed in Kroeger v. Dash, 82 Mo. App. 332, in a short hut sound opinion, holding that a writ of error cannot be brought on an order granting a new trial for the reason that such order is not a final judgment. That opinion was cited with approval by this court in Padgett v. Smith, 205 Mo. 122.

The writ of error issued herein is quashed.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.