Mr. Justice King
delivered the opinion of the court.
1. By waiving the filing of a printed abstract, as required by rule 4, the parties have presented a contingency not provided for in such rule. Rule 6 requires the brief to be filed within 20 days after the filing of the abstract. Where, by stipulation, the filing of a separate abstract is dispensed with, it is manifest that rule 6 cannot apply. Since an abstract is intended for the use of the court, as well as by the attorneys, the proper practice is for appellant to apply to' the court for an order dispensing with the filing of the abstract; but as appellant manifestly acting in good faith, filed one with his brief, but 31 days after the filing of the transcript, and before any question was raised regarding the delay, the court will refuse to dismiss the appeal, notwithstanding there is a techiiical disregard of rule 4.
2. Again the motion to dismiss this appeal was not filed until July 26, 1910, 32 days after the filing of the transcript, and 12 days after the time for filing the abstract had expired. Rule 20, as amended October 15, 1909, requires all motions to dismiss to be filed within 10 days after the failure of an adverse party to comply with the rules shall have come to the knowledge of the moving party, and provides that a failure to file within such time shall be deemed a waiver of all defects except matters of jurisdiction. The failure of the appellant to serve a brief or abstract upon respond-ant was one which must necessarily have come to his knowledge 20 days after the transcript was filed.
Under any view, therefore, the motion to dismiss comes too late, and must be denied.
Motion to Dismiss Denied.
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