
    (October 21, 1924.)
    WINNIE HONNOLD, Respondent, v. F. A. STARK-WEATHER, Appellant.
    [230 Pac. 40.]
    Appeal and Error — Bule 48 — Failure of Appearance — Judgment Affirmed.
    1. When a cause is reached for hearing on the calendar of this court and neither side has submitted a brief and only the respondent is represented by counsel who makes a motion- to dismiss the appeal, under Rule 48 this court may, in its discretion, either dismiss the cause, which results in an affirmance of the judgment below, or examine the record for fundamental error and render judgment on the merits.
    2. Record examined and held sufficient to support the judgment.
    APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.
    Action on promissory note. From judgment for plaintiff, defendant appeals.
    
      Affirmed.
    
    C. R. Clute, for Appellant.
    John W. Jones and Hamilton Wright, for Respondent.
    Counsel file no briefs.
   WILLIAM A. LEE, J.

Respondent brought an action to recover on a promissory note executed to her by appellant. The cause was tried to the court with a jury, and both sides having offered evidence and rested, upon motion of respondent the court instructed the jury to return a verdict for respondent. From the judgment entered on such verdict so returned this appeal was taken.

When the cause was reached for hearing in this court only counsel for respondent made an appearance, no briefs having been filed, and made a motion to dismiss the appeal, advising the court that since the appeal was taken the appellant has died. Rule 48 of this court provides in part that when a cause is reached on the calendar and only respondent is represented by counsel and neither side has submitted a brief, upon motion of respondent the judgment, order or proceeding of the court below will be affirmed of course and without argument, or the court may examine the record and render judgment on the merits. (Hecker v. Johnson, 36 Ida. 417, 211 Pac. 445.) We have examined the record and find no fundamental error therein; the ■judgment is affirmed with costs to respondent.

McCarthy, C. J., and Budge, Dunn and Wm. E. Lee, JJ., concur.  