On September 28, 1909, plaintiff in error filed in this court petition in error with case-made thereto attached, whereupon summons issued. On February 18, 1910, defendant in error moved this court to dismiss said appeal on the ground that plaintiff in error had failed to comply with rule 7 of this court (20 Okla. viii, 95 Pac. vi) by filing his brief with the clerk of this court within 40 days after filing said petition in error.

Service of said motion was duly had pursuant to rule 5, which reads:

“When a motion is filed with the clerk it must show service upon the opposite party as to the time it will be -filed, who shall have 10 days thereafter in which to answer the same.”

No response has been filed to said motion, and as said brief is not yet filed, and is now some six months overdue, said motion is sustained, and the appeal is dismissed.