
    Decided 3 November, 1905.
    CARTER v. WAKEMAN.
    82 Pac. 858.
    Appeal — Rules op Court —Delay in Filing Brief.
    Failure of appellant to file a brief within 20 days after service of the abstract, as required by Rule 6 of this court (35 Or. 587, 593), is not excused by reason of the fact that the manuscript was placed in the hands of the printer immediately upon serving and filing the abstract, and the work was prosecuted as rapidly as possible, but was not completed within time, and the time within which to file and serve the same was overlooked by counsel, where there was no attempt to get any extension of time within which to serve the brief, and no attention was paid to the matter until a motion to dismiss was made by respondent; the brief then being long overdue.
    Appeal from Jackson CouNty.
    Action by Nancy Carter against Miles S. Wakeman, resulting in a judgment for defendant, from which an appeal was taken. The case was before this court on a prior appeal: 42 Or. 147 (70 Pac. 393). Respondent now moves to dismiss this appeal.
    Dismissed.
    
      Mr. Q. H. Durham for the motion.
    
      Mr. II. D. Norton, contra.
    
   Per Curiam.

This is a motion to dismiss the appeal on two grounds : (1) That the undertaking was not served; and (2) that the brief of appellant was not served within 20 days after the service of the abstract. In the view we have taken of the matter, it will only be necessary to notice the latter assignment.

The abstract was. served on July 31, 1905, within time, but up to the time of the filing of the motion to dismiss, to wit, October 9,1905, the appellant had not then served or filed her brief. There was a showing made October 21, to the effect that counsel for appellant immediately, upon serving and filing the abstract of record, caused a typewritten manuscript of the brief to be placed in the hands of the printer,, and the work of printing the same prosecuted as rapidly as possible, but that the brief was not yet complete, and that the time within which to serve and file the same had been overlooked by counsel; based upon which, appellant now asks to be relieved from her default. There was no attempt to get any extension of time within which to serve such brief, and, by reason of the want of such an order, the appellant became in default August 20, having all that day in which to serve the same. Since that time no attention was apparently paid to the matter, until reminded by the motion to dismiss .tlmt the brief was long overdue, whereupon the first effort was made to be reinstated under the rules of the court.

We are agreed that the delay has not been excused by the showing, and that the appeal should be dismissed; and it is so ordered. Dismissed.  