This case came oh to.be heard upon the transcript of the record of the circuit court of Franklin county and was ’argued by counsel. On consideration whereof it is ordered and adjudged by this court that' the judgment of the said circuit court be and the same is hereby affirmed on the sole ground that the defendant had present right to occupy the streets at the time of the commencement of this action. The other questions presented are not decided, and it appearing to this court that there were reasonable grounds *364for this proceeding in error, it is ordered that no penalty be assessed herein. Ordered that the defendant in error recover from the plaintiff in error his costs herein, etc.
Davis, C. J., Shauck, Price, Crew and Spear, JJ., concur. Summers, J., not participating.