
    Daniel, &c. vs. Smelzer.
    October 8.
    Appeal from the Pendleton Circuit; Henry O. Brown, Judge,
    
      JVezi) trial. Appeal.
    
    Motion.
    Case 111.
    When a judgment in favor of the plaintiff, in the inferior court, has been erroneously set aside and a new trial granted, and on second trial a similarjudgment for plairitiffis rendered, defendant cannot succeed on an appeal, altho’ the evidence on second trial be inrulli-cient to authorue the judgment.
    
      Monroe, for appellants; Mills and Brown, for ap-pellees.
   Judge Buckner,

delivered the opinion of the court.

Upon a motion, in the circuit court, by Smelzer against E. Daniel, late sheriff of Pendleton county, and his sureties, for failing to return an execution in favor of Smelzer, against W. R. Hand and J. Henson, for one month after the return day thereof; judgment was entered against them, for ,§‘245, being the amount of the principal, interest and costs expressed in said execution; and for §70, being the 30 per centum damages thereon. Upon the motion and affidavit of Daniel, the judgment was set aside, and anew trial granted, to which Smelzer excepted.

At a subsequent term, the cause was again tried, and asimilar judgment entered, from which Daniel, &c. appealed; having spread the whole of the evidence on record. Each judgment was fully warranted by the proof; but had it eveu been deficient on the second trial, the appellants could not have succeeded in their appeal, as we are of opinion that the first judgment was improperly set aside. Had they succeeded in defeating the appellee, on the second trial, upon a writ of error, by Smelzer, it would have been reversed.

The judgment must he affirmed, with costs.  