#### Edson R. Gilbert and William H. Dunn, Appellants, v. Robert M. Sweitzer et al., Appellees.

Gen. No. 23,630.

(Not to be reported in full.)

Abstract of the Decision.

Courts, § 138 * — when order of affirmance not vacated for purpose of transfer to Supreme Court. Where a case involving constitutional questions as well as questions upon the merits is appealed to the Appellate Court which renders a judgment of affirmance, the appellants will be held to have waived the constitutional questions and will not thereafter be granted an order vacating the order of affirmance and transferring the cause to the Supreme Court on the ground that the appeal was taken to the wrong tribunal, especially where the appellees’ brief called their attention to the fact that the Appellate Court could not entertain the constitutional questions.

Appeal from the Superior Court of Cook county; the Hon. Martin M. Gbikley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Petition denied.

Opinion filed July 11, 1918.

Statement of the Case.

Petition by Edson R. Gilbert and William H. Dunn, appellants, against Robert M. Sweitzer and others, appellees, to vacate an order of affirmance by the Appellate Court and to transfer the cause to the Supreme Court.

Charles S. McNett, for appellants.

Maclay Hoyne, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Matchett

delivered the opinion of the court.