
    [No. 1134.
    Decided December 28, 1893.]
    The State of Washington, Respondent, v. Frank Wilson, Appellant.
    
    APPEAL — FAILURE TO FILE TRANSCRIPT — EXCUSABLE DELAY.
    Where an appellant’s failure to file his transcript and briefs within the time required by statute is due to a misunderstanding between his attorney and the clerk of the superior court, and the appellant has at all times been endeavoring iu good faith to prosecute his appeal, and the transcript has been Hied and his brief served prior to the hearing upon a motion to dismiss his appeal, the motion will be denied. (Hoyt, J., dissents.)
    
      
      Appeal from Superior Court, King County.
    
    Opinion on motion to dismiss appeal.
    
      G. D. Fanoell, for appellant.
    
      John F. Millar, Prosecuting Attorney, for The State.
   The opinion of the court was delivered by

Stiles, J.

The state moves to dismiss the appeal in this case because of appellant’s neglect and failure to file his transcript and briefs within the time required by the statute.

Prom the affidavits on file and the fact that the appellant, in response to the motion, has already caused the transcript to be filed in this court and his brief to be served and filed, it appears that, although there has been considerable delay in complying with the law in regard to filing transcript and briefs, appellant has at all times been endeavoring in good faith to prosecute an appeal from the judgment against him, and that the delay has probably arisen more from a misunderstanding between his attorney and the clerk of the superior court than from any other reason.

The motion to dismiss is, therefore, denied.

Dunbar, O. J., and Anders and Scott, JJ., concur.

Hoyt, J., dissents.  