[1] A motion to dismiss this appeal was made upon the ground of the failure of appellant to file his opening brief within the time prescribed. The transcript was filed in this court on July 22, 1932. Notice of motion to dismiss the appeal was filed on September 17, 1932, the time for hearing being set for October 11, 1932. On September 19, 1932, copies of the opening brief were sent by appellant to respondents and on September 24, 1932, the original brief with a copy was sent to the county clerk with the request that the original be returned. On October 8, 1932, this original brief was returned to counsel by the county clerk and on October 10, 1932, the same was filed in this court. Upon the authority of Tyner v. Axt, 111 Cal.App. 187 [295 P. 97],Toth v. Metropolitan Life Ins. Co., 113 Cal.App. 55 [297 P. 564], Snodgrass v. Hand, 125 Cal.App. 265 [13 P.2d 769], and Robinson v. El Centro Grain Co. et al., 125 Cal.App. 416 [13 P.2d 965], the motion to dismiss is denied.

Marks, J., and Jennings, J., concurred.