
    IN THE MATTER OF THE PETITION OF THE TERRITORY OF HAWAII TO REGISTER AND CONFIRM ITS TITLE TO THE AHUPUAA OF KIOLOKU IN THE DISTRICT OF KAU, ISLAND AND COUNTY OF HAWAII, TERRITORY OF HAWAII.
    No. 1212.
    Motion to Dismiss Writ of Error.
    Argued October 6, 1919.
    Decided October 8, 1919.
    Kemp and Edings, JJ., and Circuit Judge Banks in Place of Coke, O. J., Absent.
   Per Curiam:

This is an action to dismiss the writ of error herein on the ground that the opening brief of the Territory of Hawaii, plaintiff in error, which contains more than twenty-five pages, does not contain on its front fly leaves a subject index with references to the pages of the brief as required by paragraph 4 of Rule 3 of this court. Paragraph 1 of Rule 3 of this court prescribes the time in which the appellant shall file his opening brief and sets forth what said brief shall contain and the order in which it shall appear'; paragraph 2 prescribes the time within which the appellee’s brief shall be filed and what it shall contain; paragraph 3 prescribes the time within which the reply brief of the appellant shall be filed and what it shall contain; paragraph 4 provides that “every brief of more than twenty-five pages shall contain on its fly leaves a subject index with references to the pages of the brief;” paragraph 5 provides for the order of filing briefs in cases before this cdurt upon reserved questions; paragraph 6 prescribes what shall constitute a compliance with these rules when the briefs are sent by mail; paragraph 7 is in part as follows: “When, according to the foregoing provisions of this rule, an appellant is in default, the case may be dismissed.”

A. G. M. Robertson for the motion.

J. Light foot. First Deputy Attorney General, contra.

The clear intention of the rule is to leave it discretionary with this court whether or not the extreme penalty of this rule should be inflicted for every failure to comply with the provisions as to filing of briefs and as to the subject matter which said briefs should contain.

We have recently held in the case of Keahilihau v. King, ante p. 139, that where the appellant failed to file any brief within the time allowed and his conduct showed a decided laxness in the prosecution of his appeal the extreme penalty provided by this rule was none too severe and in that case the extreme penalty was inflicted. But the default of the plaintiff in error in this case is a failure to comply with a provision of such minor character that it seems to us to inflict the extreme penalty of this rule would work a hardship not warranted by the circumstances.

The motion is therefore overruled and the plaintiff in error is granted forty-eight hours from and after the filing of this opinion within which to file with the clerk of this court the subject index with references to the pages of the brief as required by said rule, and a failure to comply within this time will subject the writ of error to dismissal.  