Moreno v. Mihelis

[450]

CONLEY, P. J.

This is an appeal by the defendant, Pericles Mihelis, from an order of the superior court granting his motion to quash the writ of execution issued in the case only on condition that he dismiss his appeal from the judgment.

On the present appeal the respondent failed to file a brief within 30 days after service upon him of appellant’s opening brief (Cal. Rules of Court, rule 16(a)

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). Pursuant to the provisions of California Rules of Court, rule 17(b),

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the clerk of this court thereupon notified the parties by mail that the case would be submitted for decision on the record and on the appellant’s opening brief unless respondent filed a brief within 30 days after the date of mailing or showed good cause for relief. The 30-day period having passed, and no brief or application for relief from default having been filed by respondent, notification was given both parties by the clerk that the cause would be ordered submitted unless appellant requested oral argument. Appellant’s counsel advised the court that he did not wish to argue the cause; the ease was ordered submitted.

Under the Rules on Appeal this court has the right to accept as true the statement of facts in appellant’s opening brief. George Moreno, individually, and doing business under the firm name and style of Fanner George Moreno, obtained a money judgment against Pericles Mihelis; a writ of execution was issued and the sheriff levied upon certain monies owed to appellant by the E. & J. Gallo Winery. The judgment was thereafter paid in full by Mr. Mihelis, and on October 30, 1961, a satisfaction of judgment, executed by George Moreno and dated October 11, 1961, was filed in the office of the County Clerk of Stanislaus County.

On November 16, 1961, the appellant served and filed a notice of motion for an order: . . requiring the Sheriff of said Stanislaus County forthwith to release all levies, liens, writs, processes, attachments and other proceedings now pending in favor of plaintiffs and against the account, credits and moneys owing to defendant by E. & J. Gallo Winery and all other firms, persons and corporations; and to require said Sheriff to execute such releases, papers and documents as will enable defendant to collect from said E. & J. Gallo Winery and all other debtors of defendant all sums owing