(dissenting.) — If the record in this cause presented the question decided by the majority, I would have no hesitancy in concurring in the conclusion reached, as I think a litigant may for a valuable consideration stipulate away his right of appeal, as he may other rights the law affords him. But, as I view the record it presents an entirely different question than the one determined. In addition to the stipulation recited in the main opinion, the parties, by their attorneys, at a later date entered into another stipulation by which they agreed that the cause should be set down for hearing at the present session of this court. Through the inadvertence of counsel this stipulation did not reach the clerk in time to comply with the rule, and he very properly did not place the cause upon the calendar. After it was learned by counsel that the cause was not placed on the calendar the motion to dismiss was filed. At the hearing counsel for the moving party frankly stated that the purpose of these stipulations (as must be apparent from the very stipulations themselves) was to procure a hearing of the appeal *149at the present session of this court, and he proffered, in case the court would permit the appeal to be heard at this session, to waive his motion to dismiss and allow the case to go on the calendar, on such terms as this court might deem just. The opposing counsel, on this statement being made, consented to the imposition of terms — in fact he had previously indicated that he ought to be punished by the imposition of terms rather than by a dismissal of his appeal. The question presented to the court, therefore, is not, may a litigant waive his right of appeal, but is, rather, will this court to save the penalty of dismissal consent that a cause not technically entitled to go upon the present calendar be put thereon.
On' the question actually before us I think the decision wrong. It seems to me not only to strike too harshly at the particular litigant but to be contrary to the purpose and spirit for which the court was created. This court, like an inferior court, has for its primary purpose the hearing of causes upon their merits, and when it dismisses appeals for a mere failure to comply with some rule governing the practice not going to its jurisdiction, it does violence to the purposes for which it was created. Here the question presented is not jurisdictional; it is one on which the court may exercise its discretion; and to deny the appellant a hearing of his appeal on its merits seems to me to be so far arbitrary as to give him just grounds for complaint. In my opinion the cause should be placed on the calendar and heard at this term of court, and I therefore dissent from the ruling of the maj ority.