Pacific States Savings & Loan Co. v. Mortimer

NCURSE, P. J.

Respondent moves to dismiss the appeals in this and in sixty-one other related cases from separate

[813]

orders of the superior court authorizing the commissioner in liquidation of the affairs of the corporation to sell sixty-two parcels of real property owned by the corporation. The appeals have been taken by the corporation as an interested party appearing in response to the several orders to show cause why the several sales should not be approved. Since the questions presented on this motion are identical in each of the sixty-two eases the reasons given for our judgment are made equally applicable to all.

It is argued that the appeal is frivolous because the respondent is alone charged with the duty of determining whether to liquidate, and, having sold under that authority, and the sale having been approved by the superior court, the appeal merely puts in issue the question of authority heretofore determined in

Pacific States Savings & Loan Co.

v.

Hise,

25 Cal.2d 822 [155 P.2d 809]. But we cannot determine on the notice of appeal alone, and in the absence of any other parts of the record on appeal, that an appeal is frivolous by assuming upon the statement of respondent that the only issue that will be tendered on the appeal is the one which respondent anticipates. It has been held that where a consideration of a motion to dismiss an appeal on this ground requires an examination of the appeal on its merits the motion will be denied,

Christin

v.

Story,

211 Cal. 381 [295 P. 515];

Estate of Sayles,

212 Cal. 437 [298 P. 971];

Kelso

v.

Ulrich,

66 Cal.App.2d 873 [153 P.2d 440], The exception to this rule that an appeal may be dismissed where a mere examination of the judgment roll demonstrates that the appeal is frivolous