Morris v. Craig

THE COURT.

On petition for rehearing after order dismissing appeal.

The order as entered in the minutes reads as follows: “Motion is granted and appeal is dismissed.” The court had prepared the following memorandum which by inadvertence was not entered in full in the minutes. “By the Court: On Motion for dismissal of appeal on account of failure of appellant to file brief within the time allowed by section 4 of Rule I, and section 1 of Rule V of the Rules of Practice of this court. It appearing from the record that no brief was served or filed within the time provided; and that no application for extension of time was made or granted; and that no sufficient excuse for failure to serve and file brief has been shown; motion is granted and the appeal is dismissed.

(Bourne

v.

Root,

117 Cal. App. 618, bottom of p. 620 [4 Pac. (2d) 264].)”

In the case of

Bourne

v.

Root, supra,

the court said: “Under rule Y of the rules governing this court, if the brief is on file at the time the notice of motion to dismiss the appeal is given, that fact alone is sufficient to defeat the motion. If the brief is not filed until after notice of motion to dismiss has been given, unless a reasonable excuse for delay is shown, the appeal will be dismissed. The sufficiency of such showing is a question to be determined by the court.

(Carter

v.

Paige,

77 Cal. 64 [19 Pac. 2].) Where no sufficient excuse is shown, an appeal may be dismissed even though the brief is filed two days after service of the notice of motion

(Coats

v.

Coats,

146 Cal. 443 [80 Pac. 694]).”

[343]