
    On motion to affirm, decided December 21, 1909.
    SMITH v. SMITH.
    [105 Pac. 706.]
    Appeal and Error—Abandonment of Appeal—Failure to File Brief.
    Where appellant failed to file a brief on time, and 40 days thereafter appellee moves for affirmance, and appellant makes no showing to excuse his failure, the decree will be affirmed.
    From Multnomah: William N. Gatens, Judge.
    This is a suit by William C. Smith and others against Benjamin F. Smith and others involving the title to two lots in Block 21, Highland, Multnomah County, Oregon. From a decree in favor of plaintiffs, defendants appeal.
    Affirmed.
    See, also, 51 Or. 31 (93 Pac. 449).
    
      Mr. James T. Lawler and Mr. Edward T. Taggart for the motion.
    
      Mr. Hayward H. Riddell and Mr. Jay H. Upton, contra.
    
   Opinion by

Mr. Chief Justice Moore.

This is a motion to affirm a decree. The defendants perfected an appeal in this cause and should have filed a brief in this court not later than October 1, 1909. The plaintiffs’ counsel 40 days thereafter interposed this motion, a' copy of which was served on defendants’ counsel, who have made no showing to excuse their failure to comply with the rules of the court herein, thereby evidencing an intention to abandon the appeal.

The decree should therefore be affirmed; and it is so ordered. Affirmed.  