THE COURT.
This is a motion to dismiss an appeal for an alleged failure to file the transcript within time. [1] Examination discloses that the motion was prematurely filed and noticed. It is settled that the forty-day period prescribed in rule I for the filing of the transcript does not commence to run, when, as here, proceedings for the preparation of a record to be used on the appeal have been instituted, until such proceedings are terminated in the trial court. In the present case, the order terminating proceedings for a record was made on September 7, 1937. The motion now under consideration was noticed for a time less than forty days thereafter and, as stated, was premature.
[2] Respondents also allege that the issues involved in the main appeal are moot by reason of the appellants' failure "to file a Moratorium or Affidavit of Labor done upon the mining claims involved . . . as required by the laws of the United States of America . . .". Nowhere in the points and authorities cited in support of the motion to dismiss is any reference made to this latter ground of the motion and no citation of a pertinent statute or section thereof is attempted to be made. Upon such a showing we are not inclined to attach any significance to the point. It is not our function to develop the contention.
The motion to dismiss is denied without prejudice.