At the present term a motion was submitted by the defendants in error to dismiss the petition in error for want of prosecution. This cause was submitted for decision upon its merits at the September term, 1893, without briefs- or oral argument. The motion to dismiss, therefore, comes-too late. Such a motion, to be of any avail, must be presented before the final submission of the cause upon the merits.

No brief having been filed by either party, and the judgment conforming to the pleadings and evidence, it is accordingly affirmed. (Phenix Ins. Co. v. Reams, 37 Neb., 423; Brown v. Dunn, 38 Neb., 52; Damon v. City of Omaha, 38 Neb., 583; Langdon v. Campbell, 43 Neb., 67.)

Judgment affirmed.