Bourne

The motion, to dismiss the appeal in this case is based on the ground that the appellants have not filed their opening brief on such appeal and that the time provided for filing of appellants’ brief herein has expired. The transcript was filed on the first day of August, 1931. The time for appellants to file their opening brief expired on the thirty-first day of August, 1931. Notice of presentation of the motion to dismiss the appeal was served and filed on the second day of October, 1931.

It appears from the affidavits filed on behalf of the appellants in opposition to the motion, that Lewis H. Smith was until his appointment as judge of the Superior Court of Los Angeles County, chief counsel for the appellants in this action; that on or about the nineteenth day of August, 1931, he dictated the points and authorities to be filed in this action; that on the twentieth day of August, 1931, he was notified by the Governor of the state of California that he had by him been appointed to said office of judge of the superior court; that on the twenty-first day of August, 1931, he qualified as such judge of the superior court and entered upon the performance of his duties; that on the…