#### The People of the State of Illinois for use of Arthur A. Lowry, Appellant, v. Scott Johnson et al., Appellees.

Gen. No. 5,766.

Appeals and ebbobs—what not final judgment. A judgment that defendant recover costs and have execution therefor where plaintiff elects to abide by his demurrer is not a final judgment.

Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the April term, 1913.

Dismissed.

Opinion filed May 6, 1913.

A. A. Lowry, Pro se.

A. C. Norton, F. A. Ortman, L. M. Shelly and White, Tuesburg & Wilson, for appellees.

Mr. Justice Carnes

delivered the opinion of the court.

This is a suit upon a constable’s bond to recover the amount of an execution held by said constable in favor of plaintiff, because he did not return the same within ten days after its proper return day, under section 159 of chapter 79, B. S. The defendants filed four pleas. The first and second were withdrawn and a demurrer by plaintiff to the third and fourth was overruled. He *468elected to abide by Ms demurrer and there was a judgment that defendants recover their costs of plaintiff and have execution therefor. Plaintiff appeals.

TMs was not a final judgment and an appeal did not lie therefrom. The case is still pending in the court below. This is so completely settled by Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; People v. Board of Education, 236 Ill. 154; Seghetti v. Berry Coal Co., 164 Ill. App. 488, and Ajax-Grieb Rubber Co. v. Gray, ante, p. 377, and in the cases cited in those opinions, that no further discussion is permissible.

The appeal is therefore dismissed with leave to the parties to withdraw the record, abstracts and briefs.

Dismissed.