Toth

Motion by respondent to dismiss an appeal. The motion is based on the ground that the appellant did not file its points and authorities within the time prescribed by the provisions of section 4 of rule I of the rules of this court. The transcript was filed on February 2, 1931. The time for appellant to file its opening brief expired, therefore, on March 4, 1931. Notice of the presentation of this motion w.as given by mail. The affidavit of mailing shows that a copy of the notice of motion, properly addressed to counsel for appellant, was deposited in the United States Post Office at Bakersfield, California, on March 5, 1931. The notice of motion was filed in the office of the clerk, of this court on March 5, 1931. An affidavit filed by counsel for appellant shows that appellant’s opening brief, addressed to the clerk of this court, was deposited in the United States mail at San Francisco, California, on March 5, 1931. Appellant’s opening brief was filed in this court on March 6, 1931. The motion to dismiss the appeal herein was noticed for presentation on March 24, 1931, and was presented on that day.

In support of their contention that the appeal herein should be dismissed,…