Respondent’s notice of motion was filed on January 27, 1933, noticing the motion for February 14,1933. Appellant’s opening brief was filed on January 30, 1933. On February 7, 1933, counsel for appellant filed an affidavit giving reasons for the delay in filing the brief.

It has been repeatedly held that where the brief has been filed before the making of the motion to dismiss in open court on the day noticed, an appellate court may deny the motion. (Toth v. Metropolitan Life Ins. Co., 113 Cal. App. 55 [297 Pac. 564].) Appellant should have applied for an order extending the time within which to file her opening brief. However, respondent has suffered no particular injury,Horn the delay and, under the facts presented, we think the motion should be denied.

Motion denied.

Barnard, P. J., and Jennings, J., concurred.