Petition for a rehearing.
Biddle, J.The appellee makes two points in his petition for a rehearing, which were not considered in the original opinion.
1. A change of venue was taken from the mayor of Crawfordsville to a justice of the peace. Before the justice the appellee moved to dismiss the case “because the transcript from mayor Ramsey, and the certificate thereto, did not have the corporate seal of the city of Crawfordsville on said certificate or transcript.” The motion was overruled by the justice. Upon appeal to the circuit court the appellee therein renewed his motion to dismiss upon the same ground. The circuit court sustained the motion, and dismissed the cause. This ruling is erroneous. The mayor had no jurisdiction of the case as the mayor of the *228city of Crawfordsville; but, by virtue of being mayor, he had, “within the limits of said city, the jurisdiction and powers of a justice of the peace, in all matters civil and criminal, arising under the laws of this State, and for crimes and misdemeanors, his jurisdiction shall be coextensive -with the county in which such city is situated and “The same rules of pleading and practice shall be observed in the city judge or mayor’s court that are in [a] justice’s court.” Sec. 17, 1 R. S. 1876, p. 272. "While the mayor was acting as a justice of the peace, it was not necessary that he should authenticate his proceedings by “the corporate seal of the city of Crawfordsville.” His transcript was authenticated in the usual form by which justices of the peace are authorized to authenticate transcripts. This was sufficient. The corporate seal is necessary to be affixed only to instruments of writing needing authentication. Sec. 49, 1 R. S. 1876, p.287.
2. The appellant insists that the appeal ought to be dismissed because the transcript was not filed in this court within thirty days after the appeal was taken, as required by statute. The appeal was taken below on the 26th day of September, 1878 ; the transcript was filed in this court on the 20th day of November, 1878 ; the appellee, on the 17th day of December, 1878, moved in this court to dismiss the appeal, because the transcript was not filed in time ; on the 20th day of December, 1878, he appeared to the case, and answered the assignment of error in this court, before his motion to dismiss was decided, and the case was submitted. By thus appearing to the appeal, joining in error and submitting the case, he waived his motion to dismiss th,e appeal. We can, not consider it now. Eor the well settled doctrine of waiver in legal practice, see the following cases : Miller v. Hays, 20 Ind. 451; Bradley v. The Bank of the State of Indiana, 20 Ind. 528 ;McDougle v. Gates, 21 Ind. 65; Preston v. Sandford’s Adm’r, 21 Ind. 156; *229Cromwell v. Baty, 43 Ind. 357; Rich v. Starbuck, 45 Ind. 310; Davis v. Brinker, 50 Ind. 25 ; Marsh v. Elliott, 51 Ind. 547 ; Collins v. Rose, 59 Ind. 33; The Louisville, etc,, R. W. Co.v. Nicholson, 60 Ind. 158; The Peoples Savings Bank, etc., v. Finney, 63 Ind. 460.
In the case of Winsett v. The State, 54 Ind. 437, there was no appearance and joinder in error in. this court, after the motion to dismiss was made; the ruling, therefore, does not support the views of the appellee in this case.
The petition for a rehearing is overruled.