
    
      (No. 4870.
    
    
      December 6, 1927.)
    BANK OF EMMETT, a Corporation, Respondent, v. THOMAS E. HANCE, Appellant.
    [261 Pac. 772.]
    Appeal and Error — Failure to File Briefs, Effect.
    1. Appellant held not entitled to continuance, where there were no briefs, nor statements, points and authorities on file when case was reached for oral argument, because case had been set down for argument in advance of time estimated by counsel.
    2. Where appellant had not, within time provided by rules of supreme court or at any time, filed briefs in cause nor any specifications of error, and no extension of time had been granted by respondent for filing- of briefs, appellant’s excuse being that case was set down for argument somewhat in advance of time estimated by counsel, appeal should be dismissed, since due diligence required that counsel should protect himself by applying for an extension of time to file briefs.
    Publisher’s Note.
    See Appeal and Error, 3 C. J., see. 1605, p. 1442, n. 70 New; 4 C. J., see. 2474, p. 620, n. 61.
    
      APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. B. S. Varían, Judge.
    Motion for continuance. Denied. Motion to dismiss appeal.
    
      Granted,.
    
    Geo. C. Huebener and Rice & Bicknell, for Appellant.
    J. P. Reed and Wm. B. Davidson, for Respondent.
    Counsel file no briefs.
   HARTSON, Commissioner.

On November 9, 1927, when this cause was reached for oral argument, both sides appeared by counsel, but there were no briefs nor statements of points and authorities on file. The appellant, however, filed and presented a written motion for continuance, and respondent filed and presented a motion to dismiss the appeal. Appellant’s motion recites that it was not expected that this cause would be reached for argument until sometime after January 1, 1928. On the part of respondent it was pointed out that the appellant has not, within the time provided by the rules of the supreme court, or at any time, filed a brief in the cause, nor any specifications of error, and that no extension of time has been granted by respondent or its attorneys of record, for the filing of briefs herein. Transcript on appeal was filed in this court on October 1, 1926.

It is the opinion of your commissioners that there is no valid excuse offered by the appellant for failure to comply with the rules governing the serving and filing of briefs herein. The fact that the case was set down for argument somewhat in advance of the time estimated by counsel ought to be a cause for gratification to the litigant, rather than a reason for failure on his part to comply with the court rules. Due diligence requires that counsel should protect himself by applying for an extension of time to file briefs.

We therefore recommend that the motion for continuance be denied, and that the motion to dismiss the appeal be granted.

Babcock and Adair, CC., concur.

PBB. CURIAM.

The foregoing is approved as the opinion of the court. The motion for continuance is denied and the appeal dismissed.  