
    [Sac. No. 5186.
    In Bank.
    January 10, 1938.]
    GOLDEN ARROW MINES, INC., et al., Respondents, v. GEORGE W. HICKMAN et al., Appellants.
    Breed, Burpee & Robinson and David K. Gilmore for Appellants.
    A. J. Just, Julius A. Strauss and Charles H. Secombe for Respondents.
   THE COURT.

is a motion to dismiss an appeal for an alleged failure to file the transcript within time. Examination discloses that the motion was prematurely filed and noticed. It is settled that the forty-day period prescribed in rule I for the filing of the transcript does not commence to run, when, as here, proceedings for the preparation of a record to be used on the appeal have been instituted, until such proceedings are terminated in the trial court. In the present case, the order terminating proceedings for a record was made on September 7, 1937. The motion now under consideration was noticed for a time less than forty days thereafter and, as stated, was premature.

Respondents also allege that the issues involved in the main appeal are moot by reason of the appellants’ failure “to file a Moratorium or Affidavit of Labor done upon the mining claims involved ... as required by the laws of the United States of America ... ”. Nowhere in the points and authorities cited in support of the motion to dismiss is any reference made to this latter ground of the motion and no citation of a pertinent statute or section thereof is attempted to be made. Upon such a showing we are not inclined to attach any significance to the point. It is not our function to develop the contention.

The motion to dismiss is denied without prejudice.  