On Petition for Rehearing.
Hadley, C. J.Appellees complain that we did not rule upon their motion to dismiss the separate appeal of the city of Richmond.
The motion was filed November, 1897. It was accompanied with no brief, nor was mention made of the same in any of the voluminous briefs filed by appellees on the merits. It therefore escaped our attention.
If, as stated, it is a fact that the city of Richmond did not perfect its separate appeal by filing a bond as of term, or by the service of notice upon parties in vacation, it does not follow that it is not in court. The record shows that notice to co-appellants in Wayne county was given March 20, 1896; and under §647 Burns 1894, the city will be regarded as having joined in the appeal, in the absence of an appearance and declination.
But the record affirmatively shows that the city of Richmond did appear and assign errors and on March 24, 1896, filed a brief in support thereof. This appearance cured all defects in the matter of notice, if any existed, and was sufficient to give the court jurisdiction. Truman v. Scott, 12 Ind. 258; Ewbank’s Manual, §164, and cages cited; Elliott’s App. Proc. §146, and cases cited.
Petition for rehearing overruled.