THE COURT.

This is a proceeding based on respondents' motion to dismiss an appeal upon the ground that the transcript has not been filed within the forty-day period allowed therefor by the rules of the Supreme Court and District Courts of Appeal (sec. 1, Rule V); and furtheremore, claiming that the appeal is frivolous, respondents ask that they be awarded damages. Appellant makes no opposition to the granting of the order of dismissal, but resists respondents' application for the imposition of a penalty.

[1] The appeal was taken from an order made on July 31, 1929, terminating the proceedings to procure a transcript on the appeal which had been taken from the judgment in the action. The facts and circumstances attending the making of said order are set forth in an opinion this day filed in a proceeding wherein respondents sought to have dismissed the appeal from the judgment (Edgar et al. v. *Page 549 Citraro et al., No. 7069, ante, p. 545 [283 P. 123]); and as will appear from the facts stated in that opinion the present appeal was doubtless taken in good faith at a time when it could be fairly assumed that if the order appealed from was allowed to become final appellant would be deprived of his right of appeal from the judgment. The situation was relieved, however, when the transcript on the appeal from the judgment, duly certified, was found; and which, within a few days thereafter, was filed in the appellate jurisdiction. Obviously, therefore, after the transcript was filed with this court, it would have served no useful purpose to prosecute the appeal from the order terminating the proceedings in the Superior Court, and therefore such appeal was abandoned. But under the circumstances existing at the time the appeal was taken it cannot be said that the appeal was frivolous.

The motion to dismiss the appeal is therefore granted without the imposition of a penalty.