
    24306.
    Geer v. Hunter.
    Decided December 11, 1934.
    
      W. I. Geer, for plaintiff in error. J. A. Drake, contra.
   Guerry, J.

E. J. Hunter brought suit upon a note against W. I. Geer in a justice’s court. The case was never tried and was voluntarily dismissed by the plaintiff. Thereafter the plaintiff brought the same suit, based on the same cause of action, against the same defendant, in the superior court. The defendant filed a plea in abatement, on the ground that the costs had not been paid in the justice’s court before the second suit was instituted in the superior court, as provided in the Civil Code (1910), § 5625, and that it should therefore be dismissed. This issue was submitted to the judge of the superior court sitting without a jury. The judge rendered judgment finding that the costs had been paid prior to the recommencement of the suit in the superior court and found against the plea in abatement. There being an issue of fact, upon conflicting evidence, as to whether or not thg. costs of the suit voluntarily dismissed in the justice’s court had been paid before the bringing of the second suit, the judgment will not be disturbed.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.  