rendered tbe opinion and decree of tbe Court, as follows:

Tbe appellee moves, to dismiss this appeal (suspensive) on tbe ground that it was not taken within tbe delays allowed by law and on tbe further ground that tbe same is frivolous.

Appellee further pra.ys that it be allowed damages for frivolous appeal.

Tbe motion must be denied. “An answer to an appeal which prays for an amendment of tbe judgment, waives tbe motion to dismiss. ’ ’

Taggart vs. Noonan, 8 Ct. of Appeal, 159.

Motion denied.