The opinion
OPINION ON KEHEASING.
Smith, J. Counsel, in petition for rehearing, attempts to distinguish the instant case from that of Edgar v. Brown, supra, by stating that here the motion to dismiss was oral, while there it was in writing. It does not appear from the record before us, whether the motion was oral or in writing; but, assuming that the motion on which the court acted was oral, the reasoning of the court in Edgar v. Brown is still applicable. The point is that there was a motion to dismiss the appeal, and some showing must have been made to have invoked that action by the court. Testimony may have been 'heard which warranted that action. Counsel says that no competent testimony could have been heard on that motion; but in this he is mistaken, as appears from what we said in Edgar v. Brown, supra.
Looking only to the record before us, it appears that the appeal from the county court was dismissed, and, as it does not affirmatively appear that the court erred in making that order, the petition for rehearing is overruled.