
    Hayes et al. v. Locus et al.
    [No. 5,460.
    Filed January 9, 1906.]
    Appeal and Erroe. — Assignment of Errors. — Motion to Dismiss Appeal. — Waiver.—Where the error assigned is, that the trial ■ court erred in sustaining defendants’ demurrer and rendering judgment, no question is presented; and the fact that an appellee failed to move to dismiss such appeal until after the expiration of the time for filing its brief is not a waiver of its right to a dismissal.
    From Howard Superior Court; B. F. Harness, Judge.
    Suit by William J. Hayes and others against Dillon Locus and others. From a decree for defendants, plaintiffs appeal.
    
      Appeal dismissed.
    
    
      
      Willits & Voorhis, for appellants.
    
      Bell & Purdum and John L. Bupe, for appellees.
   Per Curiam.

This appeal having been dismissed, upon the motion of the appellants, as to all the appellees except the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, a motion to dismiss the appeal has been presented by that company. In the assignment of errors the specifications are like those which we held to be not sufficient to present any question in Spitzer v. Miller (1905), 35 Ind. App. 116. It is claimed on behalf of the appellants that this motion of the solé remaining appellee to dismiss comes too late, inasmuch as a long period has elapsed since the submission of the cause in this court, and after the time for the filing of a brief for such appellee on the merits; but, the assignment of errors being so defective as not to present any question upon the merits, the appeal upon final hearing would be dismissed by the court without any motion therefor. Therefore there has been no waiver of the right of such appellee to the dismissal.

Appeal dismissed.  