This cause is submitted on motion to quash the Avrit of error and to dismiss the appeal.
On the 4th day of November, 1905, an appeal Avas granted plaintiffs in this cause and an appeal bond Avas given in pursuance of the order of the court. Nothing further Avas done by them in prosecuting their appeal.
On the 23d day of October, 1906, without dismissing this appeal, plaintiff's sued out a writ of error from this court returnable to the first Monday of March, 1907, at which time defendants filed their motion to dismiss the same for the reason that plaintiffs had an appeal pending. At the same time defendants also filed a motion to dismiss the appeal on the ground that the plaintiff had not filed their abstract statement and brief as required by law. More than one year expired after plaintiffs had been granted an appeal before any abstract of the case was filed in this court. Under section 813, Revised Statutes 1899, the transcript should have been filed thirty days before the March term of the court for the year 1906. For the failure of the plaintiffs to comply Avith the statute the motion to dismiss their appeal is sustained.
In Kehler v. Walls, 118 Mo. App. l. c. 386 it is said: “that, a writ of error cannot laAvfully issue Avhile an appeal is pending in the same cause.” This was an inaccurate statement of the law for a Avrit of error is a writ of right. It Avas the purpose of the court to have said; that.a Avrit of error was not available to a party Avho had at the time an appeal pending in the same cause. The plaintiff's should have dismissed their appeal before resorting to their writ or -error. The motion to dismiss the writ of error is also sustained.
All concur.