Wilson v. Smith

California Court of Appeal Aug 11, 1943 No. Civ. 14121Published

Before: White

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Holding. The court denied the motion to dismiss the appeal for failure to timely file an opening brief, exercising its discretion to grant relief from default due to the recent change in procedural policy and the lack of prejudice to the respondents.

Issues

Whether an appeal should be dismissed for failure to file an opening brief within the time prescribed by court rules.
Whether the court may grant relief from default for a late-filed opening brief when the delay is excusable and does not prejudice the opposing party.

Disposition. Motion to dismiss denied

Quotations verified verbatim against the opinion

“motions of the nature here presented are addressed to the sound discretion of the court before which the motion is made, and the action of courts on such motions, upon pleas to be relieved from default is not governed or controlled by any hard and fast rules.”

“For the foregoing reasons the motion to dismiss the appeal herein is denied”

WHITE, J.

Respondents have moved to dismiss this appeal as appellant’s opening brief was not filed within the time prescribed by rule 1, section 4, of the Rules of the Supreme Court and District Courts of Appeal, in effect at the time this motion was filed and heard. Appellant has moved to he relieved from default for the claimed reason that her delay and neglect were excusable.

The clerk’s and reporter’s transcripts on appeal were filed April 13, 1943, and the notice of motion to dismiss was filed June 4, 1943, at which time appellant’s brief was 22 days overdue. Two days prior to the hearing on said motion, appellant served upon respondents and offered for filing in this

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court her opening brief, a reading of which impresses us. that it presents for determination substantial questions.

The affidavit filed by appellant in her effort to secure a relaxation of the pertinent rule, while not too definite or altogether satisfactory, does nevertheless give as reasons for the delay in. filing the brief that “Affiant anticipated that out of monies in possession of the estate and which were allowed to appellant, she would be able to pay for the costs, but, notwithstanding that there are funds in the estate, no payments have been made to her”; that counsel for appellant “has been engaged in a multitude of legal proceedings engaging his time”; that counsel was preparing the brief when he was advised by the clerk of this court that the appeal herein was improperly taken to the District Court of Appeal and had been transferred to the Supreme Court; that “affiant being mindful of the fact that the Supreme Court has consistently transferred appeals taken thereto in other than capital cases to the District Court, naturally awaited advices respecting the re-transfer of the case to the District Court of Appeal, but received no such advices.” To the foregoing might be added the fact, heretofore noted, that prior to the hearing of the motion to dismiss, appellant proffered her brief for filing in this court.

It is true that since the decision by our Supreme Court in the case of

Murphy

Krumm,

Wilson v. Smith

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WHITE, J.

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