Rabb, J.
1. On December 12, 1907, judgment was rendered in the court below in this case. The appeal was perfected by filing the transcript in this court on May 13, 1908. Appellant’s brief on the merits was filed on May 16, 1908, and the cause submitted June 12, 1908. On September 10, 1908, appellee filed its answer brief upon the merits. On December 18, 1908, after the year within which appellant might have perfected his appeal had expired, appellee filed its motion to dismiss the appeal, for the reason that appellant’s brief fails to comply with paragraph five of rule twenty-two of this court, in that it does not set out the substance of the complaint or answer, or the demurrers to the answer which present the questions that are sought to be presented by the appeal.
2, Motions to dismiss an appeal upon this ground must be presented at the earliest opportunity, and are waived by filing a brief upon the merits. It is a matter within the discretion of this court whether it will consider questions that are not properly presented in the briefs of counsel in the case, as required by the rules of the court; but the right of the appellee to demand a dismissal is waived by failing seasonably to present a motion therefor.
Motion to dismiss appeal overruled.