Lundy v. Lakin

THOMPSON, J.

The appellants applied to this court to be relieved from default in failing to file their opening brief within the time allowed therefor, and to set aside an order dismissing the appeal. Upon notice given on this court’s own initiative under rule 17 of Rules on Appeal, the appeal was dismissed for failure to file the brief. The motion for relief and to reinstate the appeal was opposed by the respondent. The motion was heard upon affidavits filed by the respective parties.

This was a suit to quiet title to 253 acres of mining land in Plumas County. The defendants answered the complaint denying the essential allegations thereof, and filed a cross-complaint seeking to quiet title in them to a portion of said land which they claimed they had acquired and operated as a placer mining enterprise. The trial court quieted title to

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the entire tract in plaintiff, and determined that defendants had no right, title or interest in any portion thereof. Notice of appeal was promptly filed. The record is voluminous. The transcripts contain 630 pages.

The decree quieting title was filed February 5, 1948. A motion for new trial was denied March 30th. Notice of appeal to the Supreme Court was filed April 12th. The cause was subsequently transferred to this court. The transcripts were filed in this court on May 10th. June 8th, the parties stipulated to extend the time for filing defendants’ opening brief to September 11th. The time for filing that brief was twice extended by this court, terminating on November 9th. No further extension of time was requested. The brief not having then been filed, this court, on its own initiative, dismissed the appeal on November 15th. Defendants, having been notified of the dismissal, served notice on respondent, on November 18th, that they would move this court for relief from said default on December 3d. Defendants received their printed brief, consisting of 225 pages, on December 2d, and filed it in this court the following day. The motion was heard on affidavits.

After oral arguments and a careful consideration of the affidavits, we have concluded that the discretion which is vested in this court on such motion should be exercised in favor of appellants. That discretion is contemplated by the provisions of said rule 17, and by the authorities of this state. Under the circumstances of this case, we think the defendants should be relieved of default, and that the order dismissing the appeal should be set aside and the appeal reinstated.