The opinion of the court was delivered by
Scott, J.This is a proceeding instituted by writ of certiorari, which was allowed at a prior term of court, and return has been made thereto by the respondent. He now moves to dismiss because appellant did not file a brief within the time allowed therefor, as in ordinary appeals. Appellant contends the cause should be heard as a special cause under rule 28 of this court, which provides that upon the final hearing of any application under said rule each side shall furnish for the use of the court seven written or printed copies of their points and authorities. This, however, only applies to the final hearing on the application *206for the writ, and not to a trial upon the merits after the writ is directed and return is made thereto. In such case, where the writ is granted, and return made, the same then stands as any other cause, and briefs should be filed within the time prescribed for the filing of briefs in ordinary appeals. In this case, however, briefs were filed by the appellant on the sixth day of the present month. The motion to dismiss for failure to file and serve the briefs was made on the 8th day of this month. On said day, prior to the filing of the motion, notice of the filing of said briefs was served upon the respondent, but the proof of service was not at that time filed, although the same is now produced. Under the circumstances, it appearing that the appellant was acting in good faith without any intention to delay the proceedings of the court, the motion is denied.
Anders, C. J., and Dunbar, Stiles and Hoyt, JJ., concur.