Taylor

This is a motion by respondent to dismiss the appeal herein from the order of the trial court granting defendant’s motion for a new trial. The motion is made upon the ground that the appellant has failed to file any points and authorities within the time prescribed by the rules of the supreme court.

The transcript was filed July 30, 1926. The notice of motion to dismiss was served November 9, 1926, and filed on the following day, and it is stated therein that the motion would be made November 29, 1926. Appellant’s opening brief was filed November 26, 1926.

Rule Y provides that if “appellant’s points and authorities be not filed within the time prescribed the appeal may be dismissed on motion, upon notice given. If . . . the points and authorities, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion.” No criminal case has been cited or discovered wherein this rule has been applied. Section 1248 of the Penal Code provides: “If the appeal is irregular in any substantial particular, but not otherwise, the appellate court may, on any day, on motion of the respondent, upon five days’ notice,…