On Petition for a Rehearing.
Niblack, J.On the 24th day of November, 1880, this, cause was submitted in open court, upon default of the appellant, on what appears to have been the motion of the appellee. On the 25th day of May, 1881, the appellee moved to dismiss the appeal because the appellant had failed to give-notice to his co-defendánts below, who had not joined in the-appeal. Action upon that motion was afterwards postponed,, and no formal ruling seems ever to have been made upon it. On the 30th day of November, 1881, the appellee moved to set aside the submission of the cause, upon the ground that he had not in fact caused the cause to be submitted, and that the record of our proceedings did not, in that respect, speak the truth. That motion was supported on the one side, and resisted by the other, by affidavits respectively filed by the parties. That motion appears also to have been postponed without having been formally decided.
We did not refer to or pass upon these motions upon the final hearing, and we are now asked to grant a rehearing of the cause so that those motions may be severally taken up and decided as preliminary to the consideration of this appeal upon. *339its merits. Our failure to notice the motions set forth as above, when this cause was formerly before us, was an inadvertence merely, and that inadvertence may have been, to some extent at least, induced by the omission of the appellee to file a brief upon the general merits of the appeal.
At the time the appellee moved to dismiss this appeal the record showed that, six months previously, the cause had been submitted upon his motion. The submission, therefore, having been with his consent, his right to have the appeal dismissed for want of notice to co-parties had been waived, and the motion to dismiss,, consequently, came too late to be effective. Field v. Burton, 71 Ind. 380; Easter v. Severin, 78 Ind. 540.
We are also of the opinion that no sufficient reason was shown for setting aside the submission of the cause. In the first place, nothing was made to appear from which it could be inferred that any injury resulted to the appellee from the submission at the time it was made..
In the next place, we think the affidavits submitted by the appellee did not exclude every conclusion in' favor of the verity of the record noting the submission. One of the attorneys for the appellee, who was in court at the time the submission appears to have been ffiade, only swears that he has no recollection of háving submitted the cause, and believes he did not agree to its submission.
In the third place, in view of the time which had elapsed, and of other proceedings which had intervened, we feel it incumbent on us to hold that due diligence was not exercised in making an effort to get rid of the supposed error in the submission of the cause, and that hence the motion to set aside the submission also came too late.
We are also asked to grant a.rehearing for alleged errors in the- opinion heretofore submitted by us. Under our practice we are not required to enter into the consideration of questions for the first time presented upon a petition for a re*340hearing. Being satisfied with the substantial conclusions reached by us heretofore, and announced in our original opinion, we will not now attempt any review of the remaining questions suggested by the petition for a rehearing.
The petition for a rehearing is overruled..