delivered the opinion of the court.
This is an appeal from an interlocutory decree rendered in vacation, dissolving a temporary injunction and awarding the appellees damages for the wrongful suing out of the injunction. The appeal was applied for and granted within ten days after the rendition of the decree, but the appeal bond was-not filed until more than five months thereafter, and then seemingly -only because the appellees were about to have an execution, issued for the collection of the damages awarded them on the dissolution of the injunction. The cause now comes on to b’e heard on á motion by the appellees to dismiss the appeal.
The appellant pleads in bar of' this motion that his failure to give this bond within the thirty days required by section 35, Code of 1906] (section 10, Hemingway’s Code), was because of a verbal agreement entered into between E. N. Miller, one of his counsel, and Gr. Wood Magee, of counsel for the appellees, that the appeal was unnecessary, and that no execution would be issued on the decree appealed from until after the cause was finally disposed of, and that by violating this agreement, and thereby causing it to become necessary for him to appeal the case in order to prevent the issuance of the execution, the appellees either waived the limitation of thirty days within which such appeal bonds should be given or are now estopped from pleading such limitation. The making of this agreement is affirmed on oath by Miller, and denied on' oath by Magee.
*696It will be necessary for ns to determine only one of the several questions that are presented by this motion, for the reason that, assuming (but only for the sake of the argument) that the agreement sought to be proven by the appellant was in fact made, nevertheless the motion to dismiss the appeal must be sustained. The alleged agreement was not to waive the limitation on the time within which the appeal bond should have been filed, but that it should' not be filed at all, and if any estoppel can arise because thereof, as to which we express no opinion, it can apply only to the appellees’ right to have an execution issued, for the appellant’s -complaint can only be that, by relying on the promise of counsel for the appellee not to have an execution issued, he allowed his right of appeal to lapse.
Sustained.