On 'December 24, 1909, defendant in erroi moved to dismiss this appeal on the ground that the alleged judgment appealed from did not appear of record in the lower court as appeared from the record in this court.

On the 15th day of December, 1909, the attorney for the plaintiff in error was permitted by this court to withdraw the case-made or transcript and the same has neither been returned to the files ■of this court nor any response made to this motion.

The appeal is therefore dismissed.