delivered the opinion of the- Court.

A motion has been made by the appellee to dismiss this case, upon the ground that the decree of the Circuit Court, from whfch the appeal has been taken, is not a final decree, within the mean: ing of the act of 1803, ch. 93;

It appears that a bill was filed against the appellants, in the Circuit Court of the United States,-for the Southern District of Alabama, by Enoch S. Kelly, the present appellee; for the purpose of being relieved from a judgment at law in the said Court, obtained by the appellants against him and two other persons named in the proceedings, upon a promissory note signed by them, and purporting to be for the sum of five thousand 'dollars, upon which judgment and execution had issued.

*214 The complainant charges in his bill, that the claim-of the appellants against him is fraudulent, and he sets out fully me particular facts upon which he relies to prove the fraud; and avers that no process, save the execution, was served upon him in the suit at law, and that he had no notice that the suit was brought against him,until the execution was issued; that he entered no'appearance to the suit, nor filed any plea in it, nor authorized any one to do it for him: and that if any attorney had done so, it was without the complainant’s knowledge or consent; and prays that the appellants (who were made defendants in the bill) might be perpetually enjoined from proceeding against the complainant on said judgment; and also for general relief.

The injunction was accordingly granted by the Court; and •afterwards, Lea and Langdon, two of the appellants, appeared and answered, denying all fraud and alleging that their cíaim against the appellee was fair aii'd just. '

It does not appear that Rafietaille, the other defendant, answered the bill; and, in this state, of the proceedings, the Circuit Court, at April term, 1839, passed the following decree:—

“Thisday came the parties by their solicitors, and this cause coming on to‘ be heard, upon the bill, answer, and exhibits, it is ordered, adjudged, and decreed, that, upon condition that the said Enoch S. Kelly, complainant, appear,'plead to'the merits of the case, and go to trial on the same at the. next term of this Court, waiving the question of jurisdiction, and pay costs of the suit at law, and the proceedings in equity, a new trial be awarded to the said complainant.”

It is from this order or decree that the present appéal has been taken: and it is evident that the order is merely interlocutory; and that no final decre'e has been passed in the case. The bill has not been dismissed, nor has the injunction been made perpetual. .The new trial at law appears to have been directed tó inform the conscience of the Court; andthe bill retained, and the injunction continued, until the finding of the jury should be known. The suit in equity is therefore yet pending, and has not been disposed of by final decree, and the appeal to this Court must be-dismissed.