the clerk of this court not later than March 15, 1923. On April 13, 1923, which was twenty-nine days after appellant's opening brief was past due, and no brief having been filed in his behalf, respondents served upon attorneys for appellant their notice of motion to dismiss the appeal herein. Appellant does not contest the facts, but seeks to be relieved because of "mistake, inadvertence and excusable neglect" under the provisions of section 473 of the Code of Civil Procedure. An affidavit of merits has been filed, together with an affidavit by Mr. Potter, to the effect that it has never been the intention of appellant to abandon the appeal, but that it has always been his endeavor in good faith to present it to the court; that although there is associate counsel in the case, and notwithstanding the fact that for several months last past Mr. Potter has been ill and in no fit condition to attend to business, Mr. Potter has had sole charge of the case and that he has been exceedingly busy in court and out of court for many weeks preceding the date of the filing of the motion to dismiss the appeal; that the reason Mr. Potter did not seek an extension of time within which to file appellant's points and authorities was that he expected to have his brief prepared and served within time and did not realize, on account of being engaged. in court almost constantly, that the time was expiring or had expired and did not realize that the same had expired until the notice of motion to dismiss was served; that through inadvertence and neglect he did not examine his calendar, nor was his attention directed thereto; that it has been the habit of one of his stenographers to direct his attention to matters that were arising before they came on for hearing, but that some weeks before the opening brief became due the stenographer who had attended to such matters had left Mr. Potter's office, and the clerk maintained in the office was not in the habit of performing such duty. Aside from the presumed knowledge possessed by the attorney representing appellant as to the time within which his points and authorities should, under the rule, be filed with the clerk of this court, the letter which was written to appellant's attorney by the attorney representing respondents particularly directed attention to former delays with reference to the filing of the transcript on appeal and, after pointing out that as to the briefs he would insist on their

being filed within the proper time, specified "Thursday, March 15th" as being the limit for filing same.

[1] The fact that appellant's counsel was under an unusual pressure of work and that his general health was poor cannot be accepted as a sufficient reason for excepting his case from the salutary rule requiring briefs to be filed within a certain time. If the law matters entrusted to his care were demanding so much of his time that it was an impracticability, considering the state of his health, for him to properly attend to the preparation of the opening brief in this case within the time permitted under the rule, the probabilities are that he could have obtained an extension of time either from opposing counsel or by an order of this court. It is said in Bailey v. Taaffe, 29 Cal. 424, that "the relief sought is asked solely on the score of excusable neglect; and upon that subject all that is said is in substance that on account of the complicated condition of defendant's title, and from the fact that the complaint was verified, more time was required to prepare the answer than is required in ordinary cases, and that during a portion of the time allowed for answering, the attorney employed to conduct the defense was compelled to be absent from town. But so far as all this tends to establish a legal excuse, it is completely and conclusively answered by the fact that no reason is given why, if more time was required, either on account of the complications suggested, or on account of the necessary absence of counsel, an application to opposite counsel, or if denied by him, to the court, for an extension of time was not made. If there was any good reason for an extension, doubtless it could have been readily obtained from opposite counsel by stipulation. If not, it certainly could have been obtained from the court by an order to that effect. There is, therefore, no pretense but that an extension of time could have been readily obtained from one source or the other had an application been made, and there is no pretense that an opportunity to make the application was, from any cause, not afforded. . . . In view of these facts, it cannot be said with any show of reason that the failure to answer in time is shown to have been excusable within the meaning of the law." To the same effect, see Shain v. People's Lumber Co., 98 Cal. 122 [32 Pac. 878], where the court concludes the matter with the statement

that "if he neglects to procure a stipulation from the respondent, or an order of the court upon a proper affidavit, he is not in a position to resist a motion of the respondent to enforce the penalty which the rules have declared shall follow such neglect."

As showing generally that appellant is not entitled to the relief which he seeks, see McFadden v. Dietz, 115 Cal. 697 [47 Pac. 777]; Suman v. Archibald, 116 Cal. 42 [47 Pac. 865]; Pilger v. Strassman, 119 Cal. 692 [52 Pac. 40]; McCabe v. Healey, 139 Cal. 30 [72 Pac. 359]; Coats v. Coats, 146 Cal. 443 [80 Pac. 694]; Egressy v. Stansbury, 149 Cal. 392 [87 Pac. 280], Barnhart v. Conley, 17 Cal. App. 230 [119 Pac. 2001; Pierce v. Employers' Ind. Exchange, 33 Cal. App. 98 [164 Pac. 403].

Counsel's illness apparently was not so serious as to prevent him from attending to some of his business for other clients, and the fact that he chose to attend to such business rather than to the matter of preparing the brief in this case does not present a satisfactory reason for granting relief to appellant. (Elliott v. Shaw, 16 Cal. 377; Ekel v. Swift, 47 Cal. 619; McGuire v. Drew, 83 Cal. 225 [23 Pac 312].)

[2] That counsel did not personally examine his calendar nor have his attention directed by either his stenographer or by his clerk to the fact that his brief either was about to become due or that the time had elapsed within which under the rule he might properly file same, is not enough to bring his neglect within the terms of the statute. The purpose of the rule is not only to facilitate the business of the court, but as well for the convenience and ultimate advantage of litigants. In order that it may be of value, it must be enforced.

It follows that respondents' motion to dismiss the appeal should be granted, and that appellant's motion to be relieved from his default should be denied. It is so ordered.

Conrey, P. J., and Curtis, J., concurred.

[Crim. No. 968. Second Appellate District, Division One.-May 10, 1923.]

THE PEOPLE, Respondent, v. G. H. KNIGHT, Appellant. [1] CRIMINAL LAW-APPEAL-APPLICATION FOR TRANSCRIPT-ABSENCE FROM RECORD-MOTION TO DISMISS.-An appeal in a criminal action will not be dismissed for failure of the transcript to show that an application stating the grounds of the appeal was filed as required by section 1247 of the Penal Code, where it is shown by affidavits that a proper application was prepared within the time prescribed by the statute and left with a deputy clerk in the office of the county clerk, with the request that the application be filed, but the same was either lost or mislaid, and that after service of notice to dismiss the appeal the attorneys for appellant procured from the trial judge a nunc pro tunc order permitting appellant to file with the county clerk a copy of the original application, and appellant has suggested a diminution of the record to correct the error.

MOTION to dismiss an appeal from a judgment of the Superior Court of Tulare County. W. B. Wallace, Judge. Motion denied.

The facts are stated in the opinion of the court.

J. W. Wright, D. M. Edwards and J. C. Thomas for Appellant.

U. S. Webb, Attorney-General, and Erwin W. Widney, Deputy Attorney-General, for Respondent.

HOUSER, J.-This is a motion to dismiss an appeal for the reason that the transcript on appeal fails to show that an application stating the grounds of the appeal was filed by the defendant as required by section 1247 of the Penal Code. That the transcript is thus defective is conceded by appellant; but after the notice to dismiss the appeal was served on the attorneys representing appellant they procured from the judge of the superior court of Tulare County, before whom the action was tried, an order nunc pro tunc permitting appellant to file with the county clerk a copy of an original application by defendant for a complete record as specified by section 1247 of the Penal Code, which applica

tion contained a specification of the grounds of appeal. Under rule 14 of the supreme court (176 Pac. xi) appellant has suggested a diminution of the record for the purpose of correcting the error, and has also asked for an order directing the clerk of this court to file herein a copy of his original application setting forth the various matters to the omission of which in the transcript on appeal objection is here made.

[1] It is shown by the affidavits on file that the original application for a complete record containing a specification of the grounds of appeal was prepared within the time prescribed by the statute and left with a deputy clerk in the office of the county clerk of Tulare County, with the request that the application be filed, to which the deputy clerk responded, "Very well,' or something of that kind"; that thereafter, in pursuance of said application and on an order by the judge of the superior court of Tulare County, a complete record (with the exception of the application) was made up; that the said application has been lost or mislaid; and that diligent search in the county clerk's office and elsewhere has been made for the said application, but that it has not been found.

Appellant apparently complied with the requirements of the statute, and he should not be made to suffer because of the loss by the deputy clerk of the document in question.

It is ordered that the motion to dismiss the appeal be and it is denied. And it is further ordered that the clerk of this court file with the records herein a certified copy of appellant's "application for a complete record" as the same appears on file in the office of the county clerk of Tulare County under the nunc pro tunc order of the judge of the superior court.

Conrey, P. J., and Curtis, J., concurred.