Wood

Respondent moves to dismiss this appeal and affirm the judgment on the ground of appellant’s failure to file his brief in time. Appellant’s brief was due on August 5, 1918, at which time an order was made extending the time to and including August 25th. On August 28th, on ex parte motion therefor and affidavit filed, a second order was made “that the' time for filing appellant’s brief in the above-entitled cause shall be and the same is hereby extended sixty days from the date hereof.” This motion to dismiss was made October 28th, pursuant to notice served and filed October 16th.

Respondent contends that the order of August 28th, purporting to extend the time, was ineffective for the reason that appellant’s time had then already expired and no right then remained in him which could be the subject of an extension, citing Clark v. Crane, 57 Cal. 629, 632 , wherein it is said, speaking of an attempted extension of the time for a motion for a new trial after the time therefor had expired: “The court or judge can extend the time under section 1054, above cited, but such extension must be granted within the period of ten days, or within such other period during which the right to give…