¶1delivered the opinion of the court.
¶2In this case the transcript of the record was filed on March 8, 1915. On the 18th of the same month the appellant asked for and was granted an extension of ten days in which to file his brief. On March 29 the said appellant asked for another extension of ten days for the same purpose, and as this request was made after the expiration of the other extension, the court, following the practice repeatedly established, denied the request “without prejudice to the rights which the parties may have. ’ ’
¶3The case being thus, on March 31 last the appellant filed a motion alleging that this appeal is similar in its nature to Case No. 1295, in which he had filed a brief, and stating that therefore he referred this case to said Case No. 1295. On the following day the respondent filed a motion for dismissal of the appeal for the reason that no brief had been filed, citing rule 42 of this court and section 303 of the Code of Civil Procedure. The court deferred ruling upon the appellant’s motion of March 31 to the time when it should pass upon the respondent’s motion to dismiss, the hearing on which was set for April 12, instant.
¶4The hearing was held on the 12th and on the same day the appellant filed a brief in support of his appeal-, thus tacitly abandoning his motion of March 31.
¶5These being the circumstances, we are of the opinion that we should exercise our discretional power and overrule the motion for dismissal so that the appeal may be considered and decided on its merits..
¶6Motion overruled.