Inasmuch as this case has been presented by counsel and decided by the court on the theory that affirmative relief could be granted to the defendant, Croker, and would seem advisable that it be determined in this court, and as it is here on appeal the issues could be properly raised by filing an amended cross petition on the part of the defendant, Croker, and securing service upon the' cross petition upon the unknown heirs of Lewis ■ Sides, ' deceased, and upon the plaintiff.

We, therefore, withhold decision until we have heard from counsel as to their wishes in the matter, and five days are given for *504that purpose. If they prefer to have us pass upon this case as now presented to us we will do so. Failing to hear from counsel, We will assume this is their desire. If counsel feel that the court is mistaken in its position concerning the status of the pleadings and the authority to adjudicate the case on the claim of defendant, Croker, we will hear from counsel.