The case should be reversed, in accordance with the opinion heretofore handed down at this term in Missouri, Kansas & Texas Railway Co. vs Phelps 4 Ind. Ter. Rep. (76 S. W. 285). Reversed and remanded, with directions to the lower court to overrule the motion to dismiss the appeal and proceed with the case on its merits.
Raymond ahd Townsend, JJ., concur.