The transcript in this cause was filed with the clerk of the court on October 23, 1924. On the twenty-third day of January, 1925, the appellant not having filed any brief, the attorney general moved to dismiss the appeal for that reason, basing his motion on paragraphs 4 and 5 of Rule X, rules of this court. However, we decided to hold the motion in abeyance until the time fixed for argument. Thereafter, on January 30, we assigned this cause for argument on February 13, 1925. When on that day it was called for argument no one appeared for either appellant or respondent, the cause was ordered submitted for decision.

Section 12122, Revised Codes of 1921, provides: "The judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear."

If the motion to dismiss the appeal be overruled and the terms of the statute be followed, the judgment must be affirmed.

As the same result will be reached in either case, the motion to dismiss the appeal is overruled and the judgment is affirmed.

Affirmed.