#### MARTIN V. HORNE v. MARY E. HORNE.

Where, upon a trial in the Court below, the plaintiff asked for a new-trial, and upon its being refused, appealed to this Court, and at the same time the defendant appealed; and in this Court, the judgment of the Court below was affirmed, dismissing the plaintiff’s action; in such case, the appeal of the defendant to this Court will be dismissed with costs.

This was an appeal bj the defendant in the preceding case; in which all the facts are sufficiently stated.

Battle <& Son, for appellant.

Steele <& Walleer, Busbee dk Busbee, contra.

Pearson, C. J.

The appeal must be dismissed at the cost of the defendant. The plaintiff asked for a new trial for error, which being refused, he appealed.

It is set out in the record “ the defendant having stated the above points of exception, asked that the same may be placed upon record, that the ruling of the Court thereon might be reviewed, should it become necessary in the Supreme Court, and for that purpose prayed an appeal.” For what purpose does the defendant appeal ? If for the purpose of having a new trial, as she and the plaintiffiboth asked for a new trial, the inclination of this Court at the first was to allow a new trial, and thus satisfy both sides.

But, after consideration, we have concluded to dispose of the appeal for the plaintiff, and let the counsel for the defendant know that an appeal on her part was idle and mere nonsense, for if this Court affirms the judgment in the Court below, and refuses a new trial, that is the end of it. If this Court reverses the judgment of the Court below and grants a new .trial, all of the exceptions of the defendant will come on for consideration upon the second trial.

*535This Court is not at liberty to express any opinion in regard to the exceptions of the defendant. So the appeal has no effect except to charge the defendant with the cost of the appeal.

PeR OuRiam. Appeal dismissed.