
    MRS. E. G. AUTH v. KUROKI ELEVATOR COMPANY.
    (167 N. W. 389.)
    Appeal — failure to prosecute — dismissal — motion for — order to show cause on — record already sent up — will not he granted.
    Where an order to show cause to dismiss a case for want of prosecution or for failure to perfect the record on appeal has not been procured until after the record on appeal has been fully perfected, the appeal should not, ordinarily, be dismissed for want of prosecution.
    Opinion filed March 12, 1918.
    Order to show cause why appeal should not be dismissed.
    
      J. J. Weeks, for respondent.
    
      W. J. Oooper (and H. 8. Blood, of counsel), for appellant.
   Grace, J.

This is an order to show cause why the appeal in the above-entitled action should not be dismissed for nonprosecution and for unnecessary delay in causing’ the clerk of the district court to transmit the judgment roll and record on appeal, and delay in serving and filing appellant’s brief. It appears from the record before us, including the affidavit in support of the order to show cause, that all of the proceedings necessary to perfect such appeal,' including the filing of the record in supreme court and the service of the brief on appeal, had all been had, and all of such things were done and performed prior to the time the order to show cause was procured. At the time such order to show cause was procured, the appeal was in such condition and was so perfected that it could have been disposed of upon its merits. There were two appeals, and order to show cause why such appeal should not be dismissed was procured in each appeal. It is held that such appeals in the above-entitled action should not be dismissed for the reason above stated.

Birdzell, J., did not participate.  