W. H. WARNER, Appellant, v. A. K. SODJIE, Appellee.

HEARD NOVEMBER 4, 1922. DECIDED JANUARY 29, 1923.

Dossen, C. J., Johnson and Witherspoon, JJ.

If the costs shall not have been fully paid, and the appeal completed within sixty days after the rendition of final judgment the appeal will be dismissed.

Judgment affirmed.

Mr. Justice Witherspoon delivered the opinion of the court :

Action of Damages for Violation of a Contract. This case is before this court upon an appeal from the Circuit Court first judicial circuit at its February term, A. D. 1922. When the case was called for trial the appellant failed to answer either in person or by counsel. The appellee rose and by request offered the following motion : “A. K. Sodjie, appellee in the above entitled cause, most respectfully prays and moves this Honorable court to dismiss the said case and rule the appellant to pay all costs for the following reasons to wit :

“1. Because the said appellee says that the judgment in this case was rendered by the court on the 27th day of February, A. D. 1922, and that the cost in this action was not fully paid until May, A. D. 1922, eleven days after the time for the completion of his appeal.

“2. And also because a writ of execution has already been issued against the appellant below in consequence of the appellant’s having failed to complete his appeal within sixty days from the day of final judgment; wherefore appellee prays that the said appeal be dismissed and appellant ruled to pay all costs, and the judgment of the court below be affirmed.”

This court after inspecting the records is satisfied that the facts stated in the motion are true and correct, therefore the motion is sustained and the appellee is entitled to recover.

This court further adjudges that the judgment of the court below is affirmed with costs for appellee.