
    Seacrest v. Newman et al.
    
    1. Appeal:, stay op execution. A stay of execution, under section 3293 of the Revision of 1863, operates as a waiver of the right to appeal. Rev., 1860, g 3294.
    2. Practice; motion. A motion made on an imperfect record, to dismiss an appeal, is not a bar to another motion for the same purpose made upon an amended and perfect record.
    
      
      Appeal from Jones District Court.
    
    Thursday, January 4.
    Plaintiff'sues defendants for damages, and on account, in the sum of ninety-three dollars, before a justice of the peace, gets a judgment'for $30.94 and costs. The defendants take the benefit of the stay law, and afterwards appeal to the District Court. The transcript, as sent up, did not show that the judgment had been stayed. Nevertheless the plaintiff moved to dismiss the appeal as being inadmissible after á stay of execution; which motion was overruled. The plaintiff, upon a proper showing, obtained a rule on the justice to send up á full and more complete transcript of his docket. This being done, the'record now showed that the defendants’ stay óf execution had been ■taken agreeably to the requirements of § 3293 of the 'Revision. The plaintiff renewed his motion to dismiss, which was again overruled, for the reason a similar motion had been previously made and overruled. The plaintiff excepting, stands upon his motion. Suit was dismissed, and he appeals.
    
      J. L. 'Shean for the appellant.
    
      C. B. Scott for the appellee.
   Lowe, J.

The right of appeal, after taking the benefit of the stay law, was cut off. § 3294, Revision.

The first record sent up under the appeal, was not a true transcript of the proceedings, and the parties were not bound to go to trial upon it, as long' as the way was open to have the same perfected. A second, true and more perfect transcript was filed, which entirely superseded the first, and upon which alone, the parties could be required to go to trial. A motion, therefore, to dismiss tbe appeal, founded upon tbe first transcript, could not, and ought not to be a bar to a motion to dismiss, founded upon tbe new and more perfect record, presenting a different state of case in an important particular. Yet tbe court overruled tbe second motion to dismiss tbe appeal, based, not upon tbe first and imperfect record, but upon tbe second' and true transcript, upon tbe ground that a former motion bad been made for tbe same purpose. We presume, from tbe argument of tbe appellant’s counsel, this was done, under tbe authority of § 2866, Revision, which says, a “Motion after a motion, or a demurrer after a demurrer to tbe same pleading, shall not be allowed,” &c. But to us it is quite plain; .that neither tbe language nor tbe object of tbe section will sanction tbe ruling, and that tbe judgment will be reversed and tbe cause remanded.

■ Reversed.  