Strong v. MacK

MARKS, J.

Respondent has moved to dismiss this appeal because appellant’s opening brief was not filed within the

[807]

time specified in. a stipulation. Appellant has moved to be relieved from default because his delay and neglect were excusable. Both motions are submitted for our decision.

The clerk’s and reporter’s transcripts on appeal were filed in the Supreme Court on October 13, 1942. The filing fee was paid. The cause was transferred here and the record filed on December 23, 1942. By stipulation appellants were given until April 1, 1943, to file their opening brief. The brief was not filed and the notice of motion to dismiss the appeal was filed on April 9, 1943, to be heard on May 11th.

Respondent relies on section 4, rule 1; and section 1, rule V, Rules of the Supreme Court and Districts Courts of Appeal, and the case of

Clinton

v.

Shaw,

(Cal.App.) 131 P.2d 58. A rehearing was granted in that case. The final opinion appears in 57 Cal.App.2d 630 [135 P.2d 172], Since that decision the Supreme Court dismissed the appeal of the defendant in

Murphy

v.

Krumm,

21 Cal.2d 846 [136 P.2d 8], for the reason that appellant Krumm failed to pay his filing fee and to file his opening brief for more than six months after the record was filed.

This court has dismissed appeals where the appellant failed to pay the filing fee for over a year after it was due,

(Deist

v.

First National Bank of Orange,

28 Cal.App.2d 379 [82 P.2d 630]), but has consistently declined to dismiss them for delays in filing the opening brief, especially where no appreciable delay in hearing the appeal had been caused. Since the decision in