On a former day of this term, to wit, May 11, 1907, at the request of appellant, we dismissed the appeal in this case, assessing the appellant with costs.
The appellee now presents a motion to reinstate the cause and be allowed to file a motion to assess ten per cent damages for delay. Appellee's motion, we think, comes too late. Before the order of dismissal was made the appellee had not appeared in the case by brief, cross-assignment of error, nor suggestion of delay. This *Page 523 being the state of the record it was the right of appellant to have it dismissed as no rights of the appellee were prejudiced, as shown by the record. Elliott's Appellate Procedure, sec. 534. That appellee intended at some time to suggest delay and ask the assessment of the ten per cent damages allowed by statute, in delay cases, is not a sufficient reason to authorize the court to reinstate the case and hear the suggestion.
The motion is refused.
Motion refused.