Wood v. Mesmer

[109]

MYERS, J.,

pro

tem.

Respondent moves to dismiss this appeal and affirm the judgment on the ground of appellant’s failure to file his brief in time. Appellant’s brief was due on August 5, 1918, at which time an order was made extending the time to and including August 25th. On August 28th, on

ex parte

motion therefor and affidavit filed, a second order was made “that the' time for filing appellant’s brief in the above-entitled cause shall be and the same is hereby extended sixty days from the date hereof.” This motion to dismiss was made October 28th, pursuant to notice served and filed October 16th.

Respondent contends that the order of August 28th, purporting to extend the time, was ineffective for the reason that appellant’s time had then already expired and no right then remained in him which could be the subject of an extension, citing

Clark

v.

Crane,

57 Cal. 629, 632, wherein it is said, speaking of an attempted extension of the time for a motion for a new trial after the time therefor had expired: “The court or judge can extend the time under section 1054, above cited, but such extension must be granted within the period of ten days, or within such other period during which the right to give such notice is still alive. After the right to give such notice is gone, giving further time could not be called an extension of the time, but it would be in effect reviving a right which no longer exists; in other words, when such right to give notice is gone, there is really no period of time to extend.”

The rules of court provide: “Thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities. . . . The time above limited for filing points and authorities shall not be extended except by order of the court upon stipulation of the parties, or an affidavit showing good cause therefor.” (Rule II.) “If . . . appellant’s points and authorities be not filed within the time prescribed, the appeal may be dismissed on motion, upon notice given. If the . . . points and authorities, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion.” (Rule Y.)