
    (52 South. 247.)
    No. 17,965.
    SIMS v. JETER.
    (April 25, 1910.)
    
      (Syllabus by the Court.)
    
    Appeal and Ekboe (§ 1106*) — Acquiescence-in Judgment — Remand.
    The defendant lost the suit in the district court. He paid costs, including stenographer’s: charges and amount due to witnesses.
    He applied for and obtained a suspensive appeal.
    He was not obliged to pay costs and charges.
    On appeal, appellee moved to dismiss the appeal on the ground that appellant had acquiesced' in the judgment by paying costs and charges.
    The court will not consider ex parte testimony, offered to prove facts alleged to the end of obtaining a dismissal.
    Case remanded in order that evidence may be introduced in the district court, and that court to pass upon the question submitted. Cause subject to appeal.
    [Ed. Note. — For other cases, see Appeal and Error, -Cent. Dig. § 4392; Dec. Dig. § 1106.*]'
    Appeal from First Judicial-District Court, Parish of Caddo; T. F. Bell, Judge.
    Action by Reuben Sims against F. F. Jeter. Judgment for plaintiff, and defendant appeals.
    Remanded.
    Alexander & Wilkinson, for appellant. D. T. Land, for appellee.
   BREAUX, C. J.

Appellee moves to dismiss this appeal on the ground that defendant, F. F. Jeter, on October 18, 1909, voluntarily paid all the costs in the case, including the stenographer’s costs and witness fees.

That defendant had been condemned by the judgment appealed from to pay all costs of the suit. The judgment was signed on the 13th day of October, 1909.

That defendant has refunded to plaintiff in the suit the amount of the stenographer’s bill, paid by plaintiff, and part of the clerk’s ■costs which had been advanced by plaintiff, as well as all other costs, as before stated.

Appellee prays that the motion be sustained and the appeal dismissed.

In support of his motion, he filed the affidavit of his counsel and of the clerk of court, showing that the costs have been paid as alleged.

This court is not inclined to consider testimony offered here for the first time, particularly it being ex parte testimony.

The evidence will have to be offered and .admitted contradictorily with parties to the suit.

When this will have been done, the court of the first instance will decide the issues of acquiescence vel non, and then the case may be brought up on appeal.

We are decidedly of the opinion that, if appellant must pay costs as in a devolutive appeal, payment of costs is not acquiescence in the judgment. That question has been •decided as stated.

We are very much inclined to the opinion, if one has taken a suspensive appeal, payment of costs is acquiescence in the judgment.

We leave the question open for further ■consideration and decision after the evidence will have been admitted.

For reasons stated, it is ordered, adjudged, and decreed that the case is remanded to the ■district court in order that that court may admit evidence and determine whether or not there was acquiescence by payment of •costs, as before stated, and that the question of costs remain in abeyance until decision on the merits.  