
    MATTHEWS v. NEFSY.
    Appeal and Error — Recokd—Arrangement oe Papers.
    i. Plaintiff in error having caused the papers composing the record to be rearranged and certified pursuant to the rules, after submission and before decision of a motion to compel the same. Held, (1) that the motion will be treated as confessed, and defendant in error granted time to file briefs on the merits; and, (2), that the failure to complj' with the rules as to arrangement of the papers in the first instance not appearing to have resulted from wilful neglect, but from a misunderstanding of the clerk of the court below, no penalty would be imposed.
    [Decided December 2, 1904.]
    (78 Pac., 664.)
    Erroe to the Distxict Court, Crook Count}', Hon. Joseph L. Stotts, Judge.
    On motion to compel rearrangement and separate authentication of the original papers and the transcript of journal entries.
    
      Nichols & Adams and Van Cise & Grant, for plaintiff in error.
    
      J-I. A. Alde-n and U- B. Bnterline, for defendant m error.
   Per Curiam.

A motion filed in this cause to require the original papers and transcript of the journal entries to be arranged and certified in accordance with rules eleven and twelve was presented and taken under advisement. It now appears that within a few days thereafter counsel for plaintiff in error caused the papers and transcript to be rearranged and certified.

It does 'not appear that there was any such wilful neglect or disregard of the rules as calls for the visitation of any penalty. The difficulty with the original arrangement seems to have been the result of misunderstanding of the requirements on the part of the clerk of the court below. The motion was apparently well taken, and was in effect confessed by a rearrangement, and will be treated as confessed, at the costs of plaintiff in error. The papers having-been properly arranged and certified, an order will be entered giving defendant in error forty-five days to file briefs on the merits.  