#### John Kuttan, Sr., and Mary Kuttan v. J. Kasparek.

Practice—Dismissal of an Appeal for Failure to Comply With an Order Weld Improper.—In a suit pending before a county court on appeal from a justice of the peace an order was entered by the court passing the cause until April 16, 1897, '‘provided defendants pay plaintiff's attorneys $10 by ten o’clock a. m., April 15,1897.” Held, that the court had no power on the fifteenth of April to dismiss the appeal after the cause had been passed to April 16 because of a failure of the defendants to pay $10 to plaintiff’s attorneys as required by said orddr.

Transcript, from a justice of the peace. Appeal from the County Court of Cook County; the Hon. Richard. Tates, Judge, presiding.

Heard in this court at the October term, 1897.

Reversed and remanded.

Opinion filed January 27, 1898.

Fliehmann & Halik, attorneys for appellants.

Ho appearance for appellee.

Mr. Justice Sears

delivered the opinion of the Court.-

This suit was pending in the County Court upon an appeal from a justice of the peace.

*258Upon April 14, 1897, an order was entered by the County Court, passing the cause until April 16, 1897, “provided defendants pay plaintiff's attorneys herein $10 by ten o’clock a. m., April 15, 1897.” Upon April 15, 1897, the following order was-entered:

> “This cause being this day called for trial, come the parties in interest, by their attorneys respectively, and it appearing to the court that said defendants have failed to comply with the order of this court entered of record yesterday, requiring them to pay the sum of $10 to plaintiff’s attorney, it is ordered by the court that the appeal herein be and is hereby dismissed, and that the plaintiff do have as damages for delay herein, ten per cent of the original judgment rendered in this cause in the court below. Judgment therefor and execution.”

To the entry of which order appellant excepted.

The appeal was not dismissed for want of prosecution, and, while it may be that when the cause was reached upon April fourteenth it might have been so disposed of, if the appellant was not then prepared to prosecute his appeal, the court could not, upon the fifteenth, after the cause had been passed to' the sixteenth, dismiss the appeal because of the failure of appellant to pay $10 to appellee’s attorneys for some purpose, doubtless a good one, but not disclosed by the record.

The judgment is reversed and the cause remanded.