To vacate an order permitting appellant (defendant) to dismiss an appeal from the judgment of a justice, “on payment to the clerk of $5 over and above the judgment below” (which was for $5 and costs), and allow full statutory costs under How. Stat., Sec. 7021.

Denied without costs, October 20, 1896, on the ground that relator’s motion in the court below should have been to vacate the order made and not for full costs, in the face of the order.

Held, that under the statute appellee was entitled to costs.