Bourne v. Root

[619]

ALLISON, J.,

pro

tem.

The motion, to dismiss the appeal in this case is based on the ground that the appellants have not filed their opening brief on such appeal and that the time provided for filing of appellants’ brief herein has expired. The transcript was filed on the first day of August, 1931. The time for appellants to file their opening brief expired on the thirty-first day of August, 1931. Notice of presentation of the motion to dismiss the appeal was served and filed on the second day of October, 1931.

It appears from the affidavits filed on behalf of the appellants in opposition to the motion, that Lewis H. Smith was until his appointment as judge of the Superior Court of Los Angeles County, chief counsel for the appellants in this action; that on or about the nineteenth day of August, 1931, he dictated the points and authorities to be filed in this action; that on the twentieth day of August, 1931, he was notified by the Governor of the state of California that he had by him been appointed to said office of judge of the superior court; that on the twenty-first day of August, 1931, he qualified as such judge of the superior court and entered upon the performance of his duties; that on the fourteenth day of August, 1931, there became effective an act of the legislature of the state of California (Stats. 1931, p. 2234) prohibiting judges of the municipal courts from presiding in the Superior Courts of Los Angeles County; that theretofore municipal judges of Los Angeles County had been assigned by the judicial council of the state of California to preside in the various departments of said superior court, in order to relieve the congestion that had arisen in the trying of cases; that after said act of the legislature became effective the congestion of business of said courts began to greatly increase and that he felt it incumbent upon himself to at once assume the duties of his office, which he accordingly did on the twenty-first day of August, 1931; that previous to his induction into office he had arranged with his son Archie A. Smith, an attorney at law who had been associated with him in the practice of law, to take over all of the law business which he had before him, including the carrying on of the appeal in this action; that within a few days after his induction into said office the said Archie A. Smith was by reason of ill health, compelled to stop all legal work