On Motion to Dismiss.
The opinion of the Court was delivered by
Bermudez, C. J.The plaintiff and appellee moves to dismiss the appeal in this case on the sole ground that the defendants have obtained a suspensive appeal from the judgment against them, without giving bond, as required by law.
This motion was filed on the 5th of May, inst. On the 16th, following, *355the plaintiff and appellee, without any reserve, ordered the case to be placed on the summary docket, as one entitled to be tried on the merits, by preference, under Act 15 of 1880, which was accordingly done.
This order is equivalent to causing the case to be sot down for trial. After such action, the plaintiff and appellee must be deemed as having waived, and cannot, therefore, urge the motion to dismiss, which, therefore, abates. Tlie appellee cannot first ask a dismissal, and next, unconditionally, a trial. The two positions are inconsistent. The latter repudiates the former. 16 A. 337 •, 12 A. 745.,
The case would be different had the motion and the merits been submitted together, as is sometimes done, particularly in the country.
The motion to dismiss is refused.
Rehearing refused.