
    [Decided January 17, 1887.]
    J. EMMONS SMITH v. S. C. WINGARD.
    Appeal — Assignment op Errors —Dismissal. —The fact that the assignment of errors required by rule 5 of the Supreme Court, in case of writs of error taken under the appeal act of 1883, is not a jurisdictional defect; and where appellee makes no proof of prejudice, and it appears that he filed his printed briefs in answer to the errors assigned, more than a year and a half prior to his motion to dismiss, his motion will not be granted.
    Error to the District Court holding terms at Tacoma. Second District.
    Defendant in error moved to dismiss the appeal.
    
      Mr. G. II. Hanford, and Mr. Elwood Evans, for Defendant in Error, argued in support of the motion.
    
      Mr. John P. Judson, for the Plaintiff in Error, contra.
    
   Mr. Chief Justice Greene

delivered the opinion of the court.

This is a motion to affirm the judgment of the District Court. The only point made that seems to need consideration is, that the assignment of errors has not been served on the adverse party nor his attorney, as prescribed by rule 5. But the failure to make the service is not a jurisdictional defect. It might have put defendant in error to some inconvenience or disadvantage, from which, on proper showing, he might be entitled to relief. Or even without a showing he might under supposable circumstances be entitled to a continuance. But he makes no proof that he is prejudiced; and since, upon inspection of the record and files, it appears that more than a year and a half ago he filed his printed briefs in answer to the errors assigned, we are of opinion that his prejudice, if ever he had any, must by this time have worn away. The case of Collins v. Seattle, 2 Wash. 354, cited by defendant in error, is not in point, for in that case there was no assignment of errors.

Let the motion be denied.

Turner, J., and Langford, J., concurred.  