¶1Appellee moves to dismiss this appeal on the ground that defendant, F. F. Jeter, on October 18, 1909, voluntarily paid all the costs in the case, including the stenographer’s costs and witness fees.
¶2*147That defendant had been condemned by the judgment appealed from to pay all costs of the suit. The judgment was signed on the 13th day of October, 1909.
¶3That defendant has refunded to plaintiff in the suit the amount of the stenographer’s bill, paid by plaintiff, and part of the clerk’s ■costs which had been advanced by plaintiff, as well as all other costs, as before stated.
¶4Appellee prays that the motion be sustained and the appeal dismissed.
¶5In support of his motion, he filed the affidavit of his counsel and of the clerk of court, showing that the costs have been paid as alleged.
¶6This court is not inclined to consider testimony offered here for the first time, particularly it being ex parte testimony.
¶7The evidence will have to be offered and .admitted contradictorily with parties to the suit.
¶8When this will have been done, the court of the first instance will decide the issues of acquiescence vel non, and then the case may be brought up on appeal.
¶9We are decidedly of the opinion that, if appellant must pay costs as in a devolutive appeal, payment of costs is not acquiescence in the judgment. That question has been •decided as stated.
¶10We are very much inclined to the opinion, if one has taken a suspensive appeal, payment of costs is acquiescence in the judgment.
¶11We leave the question open for further ■consideration and decision after the evidence will have been admitted.
¶12For reasons stated, it is ordered, adjudged, and decreed that the case is remanded to the ■district court in order that that court may admit evidence and determine whether or not there was acquiescence by payment of •costs, as before stated, and that the question of costs remain in abeyance until decision on the merits.