delivered the opinion of the court.

This is a motion, which the reporter will set out in full, to dismiss an appeal from a judgment in the court *482below awarding appellee damages for tbe death of his father, who is alleged to have been killed by reason of the negligence of appellant’s servants.

Appellant suggests that the matter herein complained of can be availed of only by a plea in bar and not by a motion, but. waives the point and .agrees that the court may decide the matter on its merits.

On the merits, the motion is controlled by Laraussini v. Carquette, 24 Miss. 151, and therefore must be overruled.

Overruled.