The motion for a new trial in this case was overruled on April 4, 1921, at which time a term appeal was granted, and an appeal bond was thereafter filed on April 30, and the transcript and assignment of errors on June 28. *413Appellant filed a printed brief on August 17, and a printed “amended brief” on September 10. Each of these recited that the “errors relied on for reversal” included that — “(2) The court erred in overruling appellant’s motion for a new trial. (3) The finding * * * is not fairly supported by the evidence. * * * (4) The finding * * * is clearly against the weight of the evidence. * * * (5) The finding * * * is contrary to law”, which is a substantial copy of the assignment of errors as it now appears in the transcript, except that the statement that the court erred in overruling the motion for a new trial appears as the fourth assignment of errors, and that one specification in the motion is that the finding is not “sustained” by sufficient evidence. On October 13, the appellees filed a motion to dismiss the appeal, and on October 18, appellant filed a verified motion for leave to amend the assignment of errors, with an acknowledgement, signed by the attorneys for appellees, of service of notice for October 2\5, “by leaving a copy of said notice and a copy of the accompanying petition with us.” The motion for leave to amend asserted, under oath, that the assignment of errors contained the four specifications above set out, in substance as printed in the briefs, except that they were numbered differently. Appellees did not appear to this motion, but it was overruled October 27, the court being influenced by the fact that the assignment contained the fourth specification.
Four weeks later, on November 25, appellee filed a motion to strike out from the assignment of errors the specification that “the court erred in overruling motion for a new trial” which is written with a pen, while the other three specifications are typewritten, and, in support of the motion, filed affidavits that this specification was not in the assignment of errors when it was examined by counsel on October 13, at the time the mo*414tion to dismiss was prepared and filed. A counter affidavit by counsel for'the appellant states that he noticed the failure of the typewritten assignment of errors, as originally prepared, to specify the overruling c¡¡f the motion for a new trial as error, and wrote in that specification with a pen before the cause was submitted (which was on July 28), as preliminary to preparing the brief, filed August 17.
Upon this conflict of statements by counsel, we must decline to pass upon the disputed question of fact. That the assignment sought to be stricken out appears in the printed brief lends some support to the position of appellant, while other facts tend to support the appellees. But we do not think we shofild decide the question presented. If the statements in the brief and in appellant’s verified motion for leave to amend the assignment of errors that one specification of such motion was that “the court erred in overruling motion for a new trial” were erroneous, appellees should havé challenged them promptly, and not have waited until nearly a month after the court had ruled on said motion, being more than three months after appellant’s original brief was filed, and two and a half months after he filed his amended brief. Appellees did not file a brief until December 5, but no reason is made to appear why they did not challenge the statement in appellant’s motion for leave to amend the assignment of errors before the court had made a ruling based upon what the verified motion stated and the facts shown by the transcript indicated to be true at the time that ruliiig was made.
'Appellee’s motion to strike out the fourth specification of the assignment of errors is overruled.