#### JOHN BURGESS et als. v. E. J. KIRBY et als.

Appeal.

When both parties appeal, and the judgment on the plaintiffs’ appeal disposes of the questions presented by both, the defendants’ appeal will he dismissed, as having been improvidently taken.

{Davenport v. McKee, 94 N. C., 333, cited and approved).

Civil ACTION, tried before Gilmer, Judge, and a jury, at January Special Term, 1886, of Durham Superior Court.

Both parties appealed from the judgment of the Court below, and the plaintiffs’ appeal was disposed of at the last Term of this Court.

Messrs. D. G. Fowle and John W. Graham, for the plaintiffs..

Mr. B. H. Battle, for the defendants.

MerrimoN, J.

The plaintiffs in the above named case, appealed to this Court. Their appeal was heard and determined' at the last Term, and the action was dismissed. It hence becomes unnecessary to decide the quéstion presented by the present, the defendants’ appeal. Indeed, it turns out that this appeal was unnecessary, and it must therefore be dismissed, as having-been improvidently taken. Davenport v. McKee, 94 N. C., 333,

Dismissed.