delivered the opinion of the court.
This is a motion for the dismissal of an appeal taken by the defendants from the judgment of unlawful detainer rendered by the trial court in favor of the plaintiff.
The motion is based on Rule 59 of the Supreme Court on the grounds that the appellants had not filed the record within ninety days and that the appeal was frivolous, the defendants having no good cause for litigating further. The said motion was filed in this , court on February 4, 1923.
The appellants opposed the motion on February 12, 1923, and exhibited the judgment-roll and statement of the case.
The appeal was taken on August 22, 1923, and on the 31st of that month the appellants were granted an extension of twenty days for presenting the proposed statement of the case, which was filed in the trial court on. September 14, 1923. The trial court ordered certain additions to be made to it and the proposed statement was again presented on September 19, 1923, and approved by the trial judge on January 22, 1924. These proceedings do not show, therefore, the lack, of diligence imputed to the defendants in the prosecution of their appeal, because the mere lapse of the ninety days referred to in rule 59, supra, is not suf*800ficient, but it must be shown satisfactorily that the appellants were not diligent in proceeding with and preparing their appeal.
Ás it has not been shown to the satisfaction of this court that the appeal is frivolous, it can not be dismissed on that ground.
For these reasons the motion for dismissal must be overruled.
Motion overruled.
Chief Justice Del Toro and Justices Wolf, Aldrey and Hutchison concurred.