¶1— I dissent. In my opinion the appellant had the right to rely upon the interpretation placed upon rule V of the Rules of the Supreme Court and District Courts of Appeal by the many decisions of the District Courts of Appeal cited in the majority opinion. True, that interpretation did not constitute a strict construction of said rule, but it had been uniformly applied by the District Courts of Appeal since the adoption of the rule. Furthermore, the appeal of this ease was within the jurisdiction of the District Court of Appeal and that court should not be denied the right to decide the case on its merits if it is disposed to do so.
¶2— I dissent. I agree with the majority opinion that, as a matter of law, it is no answer to a motion to dismiss to comply with rule V after the motion is made. But there can be no doubt that the court in which the appeal is pending has the power, upon good cause, to waive the default. The appeal was within the jurisdiction of the appellate court. The discretion vested by the rule is vested in that court. The Supreme Court has the power to *851review the determination of the appellate court, but the question is not whether the Supreme Court would have dismissed had its power been invoked, but whether the appellate court, as a matter of law, abused its power. In my opinion the showing here, while weak, was sufficient to permit the appellate court to exercise its discretion. That being so the holding of the appellate court is binding on the Supreme Court.
¶3Traynor, J., concurred.
¶4Appellants’ petition for a rehearing was denied May 10, 1943. Carter, J., and Traynor, J., voted for a rehearing.