ON MOTION FOR REHEARING.
Sutton, J.The plaintiff in error contends that he sufficiently complied with the law, and was entitled to a supersedeas of the judgment dismissing his cross-action on filing his bill of exceptions and giving the statutory bond; that it was not necessary that he pay the accrued costs; and that the provisions of section 6165 are not mandatory upon one seeking a supersedeas. We can not agree with this position. “ Section 6165 of the Civil Code, providing how a supersedeas may be obtained, is mandatory in declaring that on or before filing a bill of exceptions the party shall pay all costs, and give bond with good security, . * conditioned for the payment of the condemnation money and all subsequent costs.” Harris v. Barfield Music House, supra; Wheeler v. Wheeler, 139 Ga. 608 (77 S. E. 817). It is true that, there being no legal supersedeas, “the pendency of the writ of error in the Supreme Court was no obstacle to proceeding in the trial court with all interlocutory or ancillary matters in all respects as if no writ of error had been sued out.” However, “What odds does it make that a supersedeas is not obtained? Whether there shall be a supersedeas or not is optional with the party excepting. If he does not do what is necessary to make his bill of exceptions operate as a supersedeas, the other party may go on with the case or not, at his pleasure. If he chooses to go on, he must do so at his peril. Taking the chances of an affirmance, he must run the risk of a reversal; and as by an affirmance he would gain all the ground he passes over, so by a reversal he must lose it all.” Jordan v. Jordan, 16 Ga. 446, 452; Perkins v. Rowland, supra; Ryan v. Kingsbery, supra; Montgomery v. King, 125 Ga. 388, 391 (54 S. E. 135); Cumberland Fertilizer Co. v. Williams, 146 Ga. 27, *1029 (90 S. E. 464). “A remitted judgment of the Supreme Court is to have as much operation and effect in the lower court, when there has been no supersedeas in that court, as when there has been one.” Jordan v. Jordan, supra. If the judgment of the trial court be reversed by the Supreme Court, then all proceedings had in the case after the sustaining of the demurrer to defendant’s cross-action are a nullity; and the case stands upon the docket just as if such subsequent proceedings were not had. Jones v. Hurst, 91 Ga. 338 et seq. (17 S. E. 635); Massachusetts Bonding &c. Co. v. Realty Trust Co., 139 Ga. 180 (2), 186 (77 S. E. 86).
Rehearing denied.