EBERHARDT, Judge.
1. Defendant in error urges that since plaintiff in error recites in the bill of exceptions that he "then and there accepted and herein now [sic] accepts and assigns the same as error" there is no assignment of error and nothing for this court to consider. He urges that this position finds further support in the recital in the brief of plaintiff in error that "plaintiff in the lower court then accepted and now accepts"
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