This appeal being taken shortly after the close of the Montgomery county list last year the appellees in May, 1904, made a special motion to quash on the ground that there was no final judgment in the court below from which an appeal would lie.

The motion being somewhat unusual as to time and out of the ordinary course of practice was dismissed temporarily and the consideration of the matter postponed until the case should appear in its regular place on the Montgomery county list where it has now been reached. The appellees now withdraw their motion and ask to have the question raised on the record decided, so as to relieve them from further delay on this ground. As there has already been a considerable delay for which the action of the court is partly responsible, and as the question has now been fully argued and the court is advised upon it, we think it right under the special circumstances to make an exception to the general rule and express our opinion.

The order discharging the rule to set aside the service is affirmed on the opinion of the learned judge below.