Gilbert v. United States Fidelity & Guaranty Co.

YORK, J.

This matter comes up on a notice of motion to dismiss appeal. The record discloses the fact that the transcript herein was filed on July 19, 1928; that the notice to dismiss the appeal and the affidavit supporting the motion were filed on January 16, 1929, and thereafter, on January 24, 1929, the appellant tendered to the court his so-called appellant’s opening brief for filing, which was not filed by the clerk, but was held by him and was presented to this court at the time that the notice of motion to dismiss the

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appeal was heard. It was referred to in the affidavit o'f James B. Fenton, attorney for appellant, as stating the correct and true basis of his appeal, and is practically used by him in lieu of an affidavit of merits to support the motion for leave to file such brief of appellant, which motion was heard at the same time that the motion to dismiss the appeal came on for hearing.

In accordance with the rules of this court, the appellant is in default in failing to file the brief on time. The neglect shown cannot be considered as excusable.

The motion for leave to file brief is denied, and the motion to dismiss appeal is granted.

Houser, Acting P. J., and Grail, J.,

pro tem.,

concurred.