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 *Page 728 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 Idaho 417,211 P. 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.