
    Wadsworth Stone & Paving Co. v. Whalin.
    (Decided April 13, 1911.)
    Appeal from Edmonson Circuit Court.
    An appeal will be dismissed with damages when the judgment was superseded and the record was not filed in time, though a new trial was subsequently granted by the circuit court in an action for that purpose.
    JOHN A. LOGAN and GRIDER & HARLAN for appellant.
    LOGAN & HAZELIP for appellee.
   Opinion of the CouRt by

Chief Justice Hobson.

At the June Term 1910 of the circuit court judgment was entered in favor of appellees. Appellant appealed and superseded the judgment, but did not file the record in this court within the time allowed. It filed an action for new trial in the circuit court and in that action after the time had expired for fifing the transcript, a new trial was granted and the judgment in favor of appellee was set aside. Appellee has entered a motion to dismiss the appeal with damages. The motion must be sustained. The supersedeas suspended the judgment and prevented appellee from collecting it. When the time for fifing the record expired appellee was entitled to have it dismissed with damages and this vested right is not affected by the subsequent granting of a new trial by the circuit court in the action brought for that purpose.

Appeal dismissed with damages.  