The service of the appellant's abstract of record was accepted by appellee's counsel on the 21st day of July 1939, which was more than 170 days prior to the time designated by this court for the submission of this cause, to wit, January 16, 1940. That under Rule 24 of this court, the appellant was required to serve upon the attorneys for the appellee, at least 40 days before the day assigned for hearing of the *Page 152 case, copies of his brief of points, authorities and arguments, and that failure to comply with said requirement will entitle the party not in default to have the case submitted, at his option upon the briefs and arguments on file when the default occurred.
On the 5th day of January 1940, the appellee served upon the attorneys for the appellant, a motion to submit the cause on the record as it was on the 7th day of December 1939. This motion was submitted to the court on the 16th day of January 1940, and on that day sustained by this court. The case was submitted without oral argument in its regular order.
On the 7th day of December 1939, there was nothing on file except the appellant's abstract of the record, the appellant having failed to file brief of points relied upon for reversal and his authorities and argument. It necessarily follows that the motion to dismiss must be and it is sustained. — Case dismissed.
CHIEF JUSTICE and all JUSTICES concur.