Dissenting Opinion.
Elliott, J.I can not concur in the prevailing opinion for two reasons:
First The appeal took the case from the jurisdiction of the circuit court, and that court could not, while the case was in the Supreme Court, grant a new trial either as of right or for cause.
Second. The appellant had an election between inconsistent remedies, and having elected that of appeal he can not go into the trial court and secure a new trial.
Filed Oct. 17, 1885.