delivered tbe opinion of tbe court.

Tbé respondents in this case move for a dismissal of tbe present appeal in accordance with rule 59 of this court, which provides that notwithstanding tbe extensions of time allowed *953by the court a quo, it is within the discretion of this court to dismiss an appeal when more than 90 days have elapsed since the filing of the notice of appeal and the record of the case has not been filed in the office of the secretary of this court, upon the presentation of proper proof that the appeal has not been prosecuted with due diligence and in good faith, or that the appeal is frivolous. Thu mere lapse of the 90 days is not sufficient to warrant our dismissing the appeal under this rule, but it must be shown besides that some of the other circumstances specified in said rule exist. Therefore, as no evidence to this effect has been submitted in the present case, the motion for dismissal cannot be sustained.

It is true that the respondents attempt to deduce a lack of diligence on the part of the appellants from the fact that although the lower court ordered them to amend the statement of the case presented for its approval to be used in the appeal, said appellants allowed a long time to pass-without making the amendments ordered; but as the order of the court stated no fixed time for the presentation of the amended statement, we cannot hold that in such circumstances the appellants have been negligent, and if the failure to specify a fixed time delayed the preparation of the appeal, the respondents should have moved said court to limit the appellants to a certain .fixed period. Before we exercise our discretional power to dismiss an appeal under this rule we must be satisfied of the lack of diligence on‘the part of the appellants, and in this case we are not. The motion must be overruled.

Motion overruled.