On July 23, 1909, the plaintiff in error filed petition in error and case-made in this court.' On January 9, 1911, the defendant in error filed a motion, which shows service upon the attorney for the plaintiff in error, asking that the appeal. be dismissed on account of plaintiff in error’s failure to comply with rule 7 of this court (20 Okla. viii, 95 Pac. vi), which requires him to prepare and serve his brief upon the defendant in error within 40 days from the time of filing his petition in this court. Neither has this been done, nor has any response been made to said motion. The facts in this case are substantially the same as in Leavitt et al. v. Commercial National Bank, 26 Okla. 164, 109 Pac. 71.

The appeal is dismissed.