
    DARTHULA C. STEVENS, Appellant, v. S. H. HIGGENBOTHAM, Respondent.
    Appeal. — Dismissal.—A second motion to dismiss an appeal made for a canse existing when the first motion to dismiss was made, will not be entertained by the court.
    Id. — Decision.—Remittitük.—Findings.—When on an appeal from a decree the cause is reversed and remanded with direction to enter a decree in accordance with the opinion of the appellate court and remittitur issued and decree entered in the lower court in accordance with such remittitur, whereupon appeal is taken again, and the findings first appealed from are incorporated into the statement on appeal; held that on second appeal such findings will be stricken from the record, since all questions arising upon them were settled on the former appeal.
    Motion by respondent to dismiss the appeal and motion to strike out part of the record.
    
      Mr. Thomas Maloney for the appellant.
    
      Messrs. Kimball & White for the respondent.
   BLAOKBUEn, J.

A motion was made, argued and submitted to dismiss the appeal in this case, which motion was denied, and thereupon the respondent submitted this motion to dismiss the appeal, assigning a new reason, but one that existed at the time the first motion was made. This last motion cannot be entertained for a cause that existed when the first motion was made. The question of dismissal was heard on the first motion and decided; practice allowing a second motion to be made for the same purpose would lead to interminable delay, and should not be permitted. The motion will be stricken from the files.

This case was formerly in this court. It was tried in the court below by the court. Findings of fact and conclusions of law were made and filed, and judgment entered thereon. An appeal was taken to this court, and the judgment was reversed and tbe canse remanded, with tbe direction to enter a decree in accordance witb tbe opinion of tbis court. A remittitur was filed in tbe court below, and a decree entered, and tbis appeal is from that decree. Tbe motion we are called upon to decide now, is to strike from tbe statement in tbis case tbe findings of fact and conclusions of law made on tbe first trial in tbe court below. We tbink tbe motion ought to be sustained. Tbe questions arising on these findings ‘ of fact and conclusions of law were all disposed of in tbe former decision of tbis case by tbis court, and they can have no bearing in determining tbe rights of tbe parties on tbis appeal. Tbe motion is sustained.

Zane, C. J., and Andeeson, J., concurred.  