1 Reported in 103 P.2d 1095. This cause comes up on motion to dismiss the appeal and affirm the judgment.
From the record, it appears that the judgment was entered in the superior court November 9, 1939, and that notice of appeal was filed December 4th. The transcript was filed in the superior court on February 9, 1940, and in this court on April 10th. The statement of facts was served and filed in the superior court *Page 379 February 2, 1940, and in this court June 11th. Appellant's opening brief was not filed in this court until June 10th — after respondent had moved to dismiss the appeal.
By this delay in filing its brief, appellant has prevented the regular setting of the case at this term of court. Although appellant, since the service of the motion to dismiss, has been willing to stipulate that the case be set, the respondents decline to stipulate because of the undue burden of preparing their brief in the short time remaining before the end of the term.
[1] Under the circumstances, we think respondents were justified in refusing to stipulate for the setting of the case. We feel, however, that the motion to dismiss should not be granted unconditionally. It will be and is hereby granted unless, within ten days from the day of the filing of this opinion, appellant pays into the registry of this court the sum of fifty dollars to be remitted to counsel for respondents as attorneys' fees for services rendered and expenses incurred in making and presenting the motion to dismiss the appeal. *Page 380