majority">Per Guriam:

This is the third time this cáse has been in this court. The former decisions are reported in 52 Kan. 629, 35 Pac. 207, and 62 id. 217, 61 Pac. 803. Both these decisions were against the present plaintiffs in error. After the judgment of the district court, from which the first proceeding in error was taken, the parties entered into a writing with one another, which recited the payment by Yount of the judgment which Denning and others had recovered against her, and contained an agreement to repay the amount if this court should hold that the plaintiffs were not entitled to a recovery. This court has twice held that the plaintiffs were not entitled to recover. The plaintiffs in error refusing to repay the amount of the judgment, Yount filed a motion for an order of restitution. The motion was sustained and an order of restitution made, and this is a proceeding in error from that order. It cannot be sustained. The case is identical in principle and in point of fact with Bank v. Elliott, 60 Kan. 172, 55 Pac. 880, and hence the judgment of the court below will be affirmed.

Likewise, for the reasons above given, the judgment of *767the court below allowing execution to the defendant below, the defendant in error here, notwithstanding the giving of a supersedeas bond (the defendant having given a counter bond under the statute), will be affirmed.

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