On Petition for Rehearing.
Hadley, J.7. Appellant has filed a petition for rehearing in the above cause, and urges, as grounds therefor, that this court did not pass upon a question raised in its reply brief on the motion to dismiss. The point argued is that appellee failed to comply with rule fifteen, in *541that it did not give notice of the time of the hearing on said motion. The record shows that a copy of the motion to dismiss was presented to appellant on August 28, 1907, and service of the same was acknowledged by one. of appellant’s attorneys of record. This motion does not specify the time at which the same shall be heard by this court. The motion was passed upon October 17. On September 16 appellant appeared to said motion, and filed a brief thereon.
8. It is true the notice of said motion is not in strict, compliance with rule fifteen, but appellant had notice of the pendency of said motion, and, prior to the hearing, appeared thereto and presented its brief thereon, thereby waiving any objection to the form of the notice. Further than this, the question presented by the motion to dismiss was wholly jurisdictional, and it was the duty of this court to determine its jurisdiction at the threshold of the case, regardless of the filing of a motion questioning same. Even though the notice was faulty, no good purpose could have been served in refusing to hear the motion when the court was compelled to pass upon the question without such motion, at least at the final hearing.
9. It is also urged that this court erred in its determination “that the complaint shows that the proceeding.was for the vacation of the street, and the proceeding before the board of public works shows that it proceeded under the statute for the vacation of a street,” for the reason that the proceedings of the board of public works were made exhibits to the complaint when they formed no part- of the basis of the action, and hence cannot be considered as a part of the complaint.
10. In considering a motion that assails the jurisdiction of this court the whole record may be examined in determining the question. So, without reference to the exhibits, the complaint clearly averred that the proceeding before the board was for the vacation of Eleventh street, and that said Eleventh street was vacated, and the evidence in the record clearly supports *542these averments and supports the statement objected to in the opinion. Even if the record showed that the proceedings in the vacation of this street were in contemplation of track elevation, this would not affect this action.
Rehearing denied.