Weinmann

Respondent has moved to dismiss the appeal upon the ground that appellant’s opening brief had not been filed within the time prescribed. The notice of motion to dismiss was made and filed on the fourteenth day of July, 1923, and on the eleventh day of August, 1923, two days before the date set for hearing thereof, appellant filed his opening brief. The motion is covered by Coats v. Coats, 146 Cal. 443 [ 80 Pac. 694 ], and Berendsen v. Babdaty, 62 Cal. App. 185 [ 216 Pac. 385 ]. In the former case the brief was on file at the time the motion was granted, but it had been filed a few days after the time for filing had expired. In this case the delay was much longer. Judgment was recovered in the superior court by respondent on January 27, 1922, and notice thereof was given the same day. On February 4th of the same year a notice of motion for a new trial was given, and on April 27th following the motion was denied. On May 18th following a notice of appeal to the supreme court was filed, though under the constitution the action was one within the jurisdiction of the district court of appeal. This necessitated an order of the supreme court transferring the cause to this court for…