Ramacciotti v. Galiano

[10]

KNIGHT, J.

Plaintiffs, as copartners, brought this action to recover the possession of certain personal property, or, in the event delivery could not be had, for the sum of $2,187.-50, the alleged value thereof; also for the sum of $150 as damages for the alleged wrongful use of a tractor. A joint answer was filed by the defendants Galiano and Fornasier denying the allegations of the complaint, and the defendant McCambridge answered separately, also denying the allegations of the complaint. It was alleged in the complaint that the property involved was located on a ranch near Pescadero. It consisted of four horses, a Ford truck, farming equipment, household furniture and kitchen utensils, a frigidaire, pipe, tanks, tools, wine cooperage, two tons of straw and 50 rabbits. The cause was tried without a jury, and the findings and judgment were in favor of plaintiffs and against the defendants Galiano and McCambridge. The terms of the judgment call for the delivery of the property or the payment of the sum of $2,187.50 in case delivery cannot be had; also for the payment of the additional “sum of $150 for the unlawful use of a certain Caterpillar Tractor belonging to plaintiffs.” It does not appear from the .findings or judgment how the action was disposed of as to the defendant Fornasier. The defendants Galiano and McCambridge appeal, and among the grounds urged for reversal is insufficiency of the evidence.

The respondents failed to file any brief. The transcript was filed March 14, 1942; the due date for filing respondents’ brief was July 9, 1942; and after notice to the respective parties the appeal was placed on the calendar for argument on February 23, 1943. On September 25, 1942, and again on December 17, 1942, the clerk of this court notified counsel for respondents that the time for filing respondents’ brief was long overdue, and requested that it be filed. In response to the first letter counsel for respondents wrote that the case was about to be settled and that a settlement would be reached within ten days. There was no answer to the clerk’s second letter; nor did respondents appear in person or by attorney at the time of oral argument, or offer any explanation for failure to appear. The appeal was thereupon ordered submitted on the appellant’s brief.

Rule V of the Supreme Court and District Courts of Appeal provides that if the respondent does not file his points and authorities within the time allowed therefor, the cause