Berendsen

Plaintiffs have presented a motion to dismiss the appeal of defendant Badaty herein for the reason that he has failed to file his opening brief within the time allowed by rule of this court, and the said defendant has filed a motion to be relieved from such default.

It appears that appellant was first late in filing the transcript on appeal in that while it should have been filed not later than January 3, 1923, it was not until February 12, 1923, that it was actually filed. At that time the attorney representing plaintiffs wrote a letter regarding the matter of further delay to Bernard Potter, Esq., who was representing the appellant. It is not denied that the letter was received by Mr. Potter. A copy of the letter is as follows:

Subdivision 4 of rule II of this court ( 176 Pac. viii ) provides that “within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities.” As is stated in the letter to Mr. Potter, the appellant’s opening brief was due to be filed with the clerk of this court not' later than March 15, 1923. On April 13, 1923', which was twenty-nine days after appellant’s opening brief was past due, and no…