MARKS, J.
This is a motion by respondent to dismiss this appeal upon the ground that appellant failed to file his points and authorities within the time specified in rule I of the Rules for the Supreme Court and the District Courts of Appeal. The penalty for breach of this rule is found in rule V.
[1] The clerk's transcript on appeal was filed on April 11, 1936, the notice of motion to dismiss on May 14, 1936, and the appellant's opening brief on June 6, 1936. The motion to dismiss was calendared on June 9, 1936. The filing of the brief before the hearing of the motion has been held sufficient compliance with the rules to justify the denial of the motion. ( Toth v. Metropolitan Life Ins. Co., 113 Cal.App. 55 [ 297 P. 564].)
The motion to dismiss is denied.
Barnard, P.J., and Jennings, J., concurred.