(dissenting) — I am compelled to dissent from the disposition of this case made by the majority. Following the case of Ollar-Robinson Co. v. O’Neill, the case is dismissed because the abstract of record was not served at or before the time of the service of the opening brief. To hold that the abstract must be served at or before the time of the service of the opening brief, is not in my opinion, a correct interpretation of even the technical words of the statute. The statute does not require an appellant to serve the abstract of record at or before the time of the service of the opening brief, but requires it to be served, to quote its language, “at or before the time when he is required by rule or statute to serve his opening brief.” In this case, therefore, even under the strict wording of the statute, the abstract may have been served in time although served some two weeks later than the service of the opening brief. It would seem to follow that inquiry should be made whether the abstract was served at or before the time in which the appellant was required by rule or statute to serve his opening brief, before the case is dismissed.
But my chief complaint is against the principle involved in the rule itself. I cannot conceive that a practice act should receive such a highly technical construction. In the case at bar, the respondent has not been in any way prejudiced, nor has the court been in any way inconvenienced, by the lapse of the appellant, and to deny the appellant to have her cause heard upon the merits because of such lapse, is a punishment grossly disproportionate to the character of the offense.
The motion to dismiss should be denied.