#### Wulff v. Davis.

Opinion delivered May 19, 1913.

Aepeau prom county court — affidavit.—Where, in an appeal from the county court, the appellee failed to file an affidavit for appeal until four days after the appeal was granted, and the appellant did not raise the question in the circuit court, the filing of the affidavit will be held to have been waived by reason of the appellant’s appearing and taking substantive steps wiihout moving to dismiss the appeal on that ground.

Appeal from Arkansas Circuit Court; Eugene Lank-ford, Judge;

affirmed.

J. M. Brice, for appellant.

W. A. Carpenter, for appellee.

McCulloch, C. J.

This is a companion ease to Wulff v. Claibourne, 107 Ark. 325, 155 S. W. 497, and every point now raised is concluded by the decision in that case, except the one that the appeal from the county court should have been dismissed because the affidavit *292for appeal was not filed until four days after the appeal was granted by tbe county court. That question was not, however, raised in tbe circuit court, and can not be raised bere for tbe first time. Appellant filed a motion in tbe circuit court to dismiss tbe appellee’s appeal from tbe county court, and assigned numerous grounds for dismissal, but did not raise any question as to failure to file an affidavit before tbe order was made granting tbe appeal. Tbe first time tbis was referred to was in tbe motion for new trial filed several days after tbe final judgment of tbe circuit court was rendered upon tbe merits of tbe cause.

Tbe filing of an affidavit was a prerequisite (Walker v. Noll, 92 Ark. 148), but was waived by appellant’s appearing and taking substantive steps without moving to dismiss tbe appeal on that ground. Ex parte Morton, 69 Ark. 48; Stricklin v. Galloway, 99 Ark. 56.

Tbe judgment of the circuit court is therefore affirmed.