Opinion by

Notwitstanding the order of dismission, and however it may have been obtained, the parties seemed to have acquiesced after-wards in the pendency of their litigation and we think the order may have been treated as waived, if not properly set aside by the court.

From the character of the issues and the depositions copied in the record, it is, at best, probable, that the appellant might have defeated the claim as illegal if he had not submitted the case to arbitration.

But no sufficient ground was disclosed for setting the verdict aside and it is not subject to revision now. If it was, there is no bill of exceptions by which this court could know what oral testimony may have been heard and considered by the referee, Unthank, and we cannot therefore say that the award was not right. Therefore the judgment is affirmed.