The appellee has raised the point that the transcript of the record in this case was not filed within the time allowed by statute for perfecting appeals to this court, and that, therefore, this appeal must be dismissed
The record in this case discloses the following facts, viz.: This cause was submitted to a jury for trial, and a verdict rendered in favor of appellee (defendant) on January 16, 1923; on January 23, 1923, the court rendered its judgment on said verdict, that the plaintiff take nothing by his complaint, and that the defendant recover her costs, etc.; on January 29, 1923, the appellant (plaintiff) filed his motion for a new trial, which was thereafter, on April 11, 1923, overruled with an exception to the appellant; on April 27, 1923, the appellant prayed an appeal to this court and time was given within which to file bond, etc.; on May 7, 1923, the appellant, by counsel, withdrew his prayer for an appeal, and the record then recites, "and the court now finds that the defendant is entitled to recover of and from the said plaintiff her costs and charges laid out and expended taxed at $ . . . . It is therefore ordered, and adjudged, and decreed by the court that said defendant recover of and from the plaintiff her costs and charges laid out and expended, this day taxed at $ . . . ."; after the court had taken this action, the appellant at once again prayed an appeal to this court which was *Page 369 granted, bond fixed, etc.; the transcript was filed in the office of the clerk of this court on October 22, 1923. It will be noted that the judgment rendered herein on January 23, 1923, was a final judgment. It disposed of all issues between the parties thereto, and said judgment has never been modified or set aside, but at all times since the rendition thereof has been in full force and effect. No motion or other step was taken by appellant to in any way change, modify, or set aside said judgment, and the order of the court under date of May 7, 1923, we construe as being simply a judgment covering costs which had accrued subsequent to the rendition of the original judgment.
The motion for a new trial having been overruled on April 11, the 180 days within which the transcript might have been filed in the office of the clerk of this court, on appeal, expired October 8, 1923.
It necessarily follows that as the transcript in this case was not filed in the office of the clerk of this court within the 180 days allowed by statute, we are without jurisdiction and this appeal must be and the same is hereby dismissed.