
    Florence L. Moore v. Earl E. McCollum et al.
    Filed February 5, 1895.
    No. 5952.
    1. A motion to dismiss a cause out of this court for wapt of prosecution, in order to be of any avail, must be presented before the-final submission of the case upon the merits.
    2. Where no brief has been filed by either party, and the causéis submitted without oral argument, the judgment, if it conforms to the pleadings and evidence, will be affirmed. (Pheniar Jns. Co. ii. Beams, 37 Neb., 423; Brown v. Dunn, 38 Neb., 52;. Langdon v. Campbell, 43 Neb., 67.)
    Error from the district court of Douglas county. Tried below before Hopewell, J.
    
      A. 8. Churchill, for plaintiff in error.
    
      De France & Richardson, Winfield 8.8traum, and Curtis & Shields, contra.
    
   Norval, C. J.

At the present term a motion was submitted by the defendants in error to dismiss the petition in error for want of prosecution. This cause was submitted for decision upon its merits at the September term, 1893, without briefs- or oral argument. The motion to dismiss, therefore, comes-too late. Such a motion, to be of any avail, must be presented before the final submission of the cause upon the merits.

No brief having been filed by either party, and the judgment conforming to the pleadings and evidence, it is accordingly affirmed. (Phenix Ins. Co. v. Reams, 37 Neb., 423; Brown v. Dunn, 38 Neb., 52; Damon v. City of Omaha, 38 Neb., 583; Langdon v. Campbell, 43 Neb., 67.)

Judgment affirmed.  