
    MOORE vs. LAWSON.
    [MOTION TO DISMISS APPEAL.]
    1. Appeal; when dismissed.- — If an appeal is taken on a judgment, after it has been set aside and a new trial granted, it will be dismissed on motion of tbe appellee.
    2. Same; what neeessary before taking, when new trial is granted at appellants instance. — If tbe new trial in sueb a case is granted at tbe instance of tbe appellant, be should, before taking bis appeal, apply to tbe court granting tbe new trial, and bave the order granting tbe new trial set aside.
    Appeal from the Circuit Court of Bullock.
    Tried before the Hon. J. McCaleb Wiley.
    The facts of the case appear in the opinion.
    
      J. N. Arrington, for appellant.
    Rice, Semple & Goldthwaite, contra.
    
    [No briefs came into the hands of the reporter.]
   Per Ouriarn.

At the November term of the circuit court of Bullock county, in the year 1868, the appellee in this case, as plaintiff, recovered a judgment against the appellant, as defendant, for the sum of three thousand seven hundred and thirteen 27-100 dollars, and costs of suit. .

Afterwards, at the February term of said court, in the year 1869, the said defendant, said John C. Moore, filed his petition in said court, and prayed the court to set aside said judgment, and grant him a new trial.

The court, therefore, set aside said judgment, and granted a new trial.

After said judgment was so set aside, and a new trial granted, said defendant, said John C. Moore, appeals to this court to revise the judgment so set aside at his instance, the order granting a new trial remaining in full force.

The appellee, said John R. Lawson, now moves this court to dismiss said appeal, because there is no final judgment to support said appeal.

The facts here stated are admitted by said appellant.

Whether the circuit court did right or wrong in granting a new trial, is not a material question, as far as this motion is concerned. If it be admitted the court was wrong, the appellant is not in a condition to complain of it here, as the error was committed at his instance.

The appellant, before taking his appeal, should have applied to the said circuit court, and had the order granting the new trial set aside.

Let the appeal be dismissed at the appellant’s costs.  