Pretzer v. California Transit Co.

BARNARD, J.

This motion to" dismiss the appeal herein was made on the ground that appellant had failed to file his opening brief within the time permitted by the rules of the court and the requirements of law. It appears from the -record herein, and -affidavits filed in connection with this motion, that the transcript upon this appeal was filed in the District Court of Appeal, First Appellate District, on July '29, 1929. The time for appellant to file its opening brief expired August 28, 1929. Respondent’s counsel signed a stipulation extending this time to September 28, 192'9, then another stipulation extending the time, to October 28, 1929. On October 30, 1929, although the appellant was then in default, a third stipulation was signed, extending the time to November 18, 1929. Respondent signed this stipulation because appellant claimed to have been misled by previous negotiations for a settlement. On October 28, 1929, respondent’s attorney had notified appellant’s attorneys by letter, that all negotiations for a settlement were terminated. On or about November 14, .1929, respondent’s counsel refused a further extension. Appellant thereupon applied to the court for a thirty-day extension, and on November 18, 1929, said court made an order extending the time to November 25, 1929. On November 19, 1929, an order was- entered by said District Court of Appeal transferring this cause to the District Court of Appeal for the Fourth Appellate District. Appellant’s attorneys] not knowing the case had been transferred, mailed their brief at Los Angeles on November 25, 1929, addressed to the clerk of the First Appellate District. It arrived at San Francisco on November 27, 1929, and was forwarded to the office of the clerk of the Fourth Appellate

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District at Fresno, where it was received on November 29, 1929. The brief was not filed, pending the outcome of this motion. Notice of motion to dismiss the appeal was filed in Fresno on November 26, 1929. An order shortening the time for hearing was obtained on November 27, 1929, and the notice was received by the attorneys for appellant on November 27, 1929.

Under rule Y of the rules governing this court, if the brief is on file at the time the notice of the 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 the motion has been given, unless a reasonable excuse for the delay is shown, the appeal will be dismissed. The sufficiency of such showing is a question to be determined by the court.