Whereas, The extended time allowed the appellant' for ■filing the transcript of the record herein in this court expired on August 27, 1916;

*570Whereas, On the 28tli of the said month, at 3.40 p. m., the appellee served notice on the appellant of bis motion for dismissal of the appeal because the transcript was not filed within the time fixed by law, it having been delivered to the secretary of this court at 6.30 p. m. of that day and the motion having been filed on the following day;

Whereas, According to rules 58 and 60 of this court, if' the transcript of the record for the prosecution of the appeal be not filed within the time prescribed, the appeal may be dismissed, on motion after notice given; but if the transcript,, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion;

Whereas, From the moment the appellee notifies the appellant of his motion for dismissal of the appeal on said, ground, or because the transcript of the record was not filed within the time allowed by law, the right accrues to the former that the appeal should not be heard; and this right should be upheld, for it is not overcome by the fact that, the transcript of the record was filed some hours after the-notice of the motion for dismissal was received;

Therefore, In accordance with the said rules, with section 299, as amended in 1911, and section 303 of the Code of Civil Procedure, and with the case of Benedicto v. Brae, decided this day, the motion of the defendant-appellee is sustained and the appeal of the plaintiff-appellant from the judgment of .the District Court of Ponce of March 18,’ 1916, is dismissed. Let this decision be communicated to the said district court for its guidance.

Dismissedr.