Krumm

— I dissent. In my opinion the appellant had the right to rely upon the interpretation placed upon rule V of the Rules of the Supreme Court and District Courts of Appeal by the many decisions of the District Courts of Appeal cited in the majority opinion. True, that interpretation did not constitute a strict construction of said rule, but it had been uniformly applied by the District Courts of Appeal since the adoption of the rule. Furthermore, the appeal of this ease was within the jurisdiction of the District Court of Appeal and that court should not be denied the right to decide the case on its merits if it is disposed to do so.

— I dissent. I agree with the majority opinion that, as a matter of law, it is no answer to a motion to dismiss to comply with rule V after the motion is made. But there can be no doubt that the court in which the appeal is pending has the power, upon good cause, to waive the default. The appeal was within the jurisdiction of the appellate court. The discretion vested by the rule is vested in that court. The Supreme Court has the power to *851 review the determination of the appellate court, but the question is not whether the Supreme Court would have dismissed had its power been invoked, but whether the appellate court, as a matter of law, abused its power. In my opinion the showing here, while weak, was sufficient to permit the appellate court to exercise its discretion. That being so the holding of the appellate court is binding on the Supreme Court.

Traynor, J., concurred.

Appellants’ petition for a rehearing was denied May 10, 1943. Carter, J., and Traynor, J., voted for a rehearing.

— This is a motion by plaintiffs to dismiss the appeal of defendants because of the latter’s failure to present their record on appeal within the time required by law.

The following chronology of events is material to the consideration of this motion: On June 23, 1941, the judgment in question was rendered and from the respective adverse portions thereof plaintiffs and defendants took separate appeals. On August 18, 1941, the parties stipulated that both appeals might be heard on a single transcript and “that each appellant will pay his own filing fee in the Court of Appeal.” On October 3, 1941, the clerk’s and reporter’s transcripts were delivered to the clerk of the District Court of Appeal, Fourth District, and he gave notice of such receipt to the respective parties. On October 4, 1941, the filing fee of plaintiffs as appellants was paid and the transcripts were filed. On October 27, 1941, the parties entered into a stipulation, approved by order of said District Court of Appeal, whereby defendants were given until November 30, 1941, in which to file their opening brief, plaintiffs were allowed thirty days thereafter to answer and file their opening brief, and defendants were…