The first error assigned in this court by the appellant, Ifyperly, is that a judgment was taken against his co-appellant, White, without an answer from him, or a default. White, however, appears in this court and waives all error, and moves to affirm the judgment.
The second error assigned is that a demurrer was filed to the amended complaint, and that the court proceeded to try the case without making any disposition of the demurrer. The record shows an answer to 'have been filed, but no reply. At a later date, the record recites that an amended complaint was filed and a demurrer thereto, but does not set forth either paper. An agreement of counsel is filed in this court, however, stating “that a reply in the court below was properly filed in said cause to *195the answer of Epperly, and that this court shall adjudicate said cause as if the record showed the cause to have been properly at issue in the court below, as to the parties appearing.”
J. Davis and W. March, for appellants. W. JR. Dierse and JEL. D. Thompson, for appellee.If the third and last error assigned had been the action of the court in overruling the motion for a new trial, the question as to the sufficiency of the evidence would have been considered in this case. That question is not presented. ■ -
The judgment is affirmed, with five per cent, damages and costs.