
    I. D. Otis and Baird v. Edward Barker.
    Motion to Dismiss Appeal — Appeal and Error — Waiver.
    Pending action on a motion to dismiss an appeal,-the filing of a brief by appellee on the merits of the ease does not constitute a waiver of the motion; the filing of the brief and motion to dismiss were simultaneous and intended to operate alternately.
    APPEAR EROM JEEEERSON CIRCUIT COURT (c. P.)
    January 4, 1868.
    
      Thompson, for appellant.
    
    Humber, for appellee.
    
   Opinion oe the Court by

Judge Bobertson :

The motion to dismiss the appeal was not waived or precluded by filing a brief on the merits of the case, because the brief and the motion to dismiss were simultaneous, and intended to operate alternatively.

The appeal was taken October the 24th, 1866, and the record was not filed in this court until November the 12th, 1867. Consequently, the appellee, not having waived his right to a peremptory dismission for the non-filing of the record within the time prescribed by law, the court has no judicial discretion to overrule his motion. And we doubt whether, if the record had been filed in proper time, it would be available for reversal.

Wherefore, without much apprehension of loss or hardship to the appellants, their appeal is dismissed.  