The defendant, Howard Fouts, was tried jointly with one Ralph Johnson, and both defendants were found guilty by a jury. Johnson appealed to this court, and his conviction was reversed. Cf. State v. Johnson et al., 67 S.D. 459, 293 N.W. 822. The trial court on the motion of Fouts granted this defendant a new trial, and the State on the 25th of October, 1939, perfected an appeal to this court from the order granting the new trial. Thereafter stipulations were entered into by counsel for appellant and respondent extending the time within which to file and serve appellant's brief to the 21st day of April, 1940. No further stipulation has been entered into, and no brief has been filed, and no further steps or proceedings have been taken in prosecution of the appeal.

The appeal is deemed to be abandoned, and the order appealed from is affirmed.

All the Judges concur.