Dalton v. Los Angeles College of Chiropractic

CONREY, P. J.

This motion to dismiss appeal or affirm the judgment is made upon the ground that the appeal is taken for delay only, and on the further ground that the questions upon which the decision of the cause depends are so unsubstantial as not to need further argument. The motion is based upon appellant’s opening brief, and on the transcript, and on the points and authorities of respondent in support of the motion.

This motion is made under the new section 3 of rule V of the Rules of the Supreme Court and District Courts of Appeal, which was printed in “The State Bar Journal” of June, 1932, at page 138. This is a new section which became effective July 1, 1932, and this is the first motion which has been presented for consideration to this court under the new rule. The new section reads as follows: “At any time after the filing of the opening brief of an appellant in a civil action, the respondent may, upon due notice, move for a dismissal of the appeal or an affirmance of the judgment or order on the ground that the appeal was taken for delay only or that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. A motion to dismiss may be

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united in the alternative with a motion to affirm. Although the- court may, upon consideration of the motion to dismiss or the motion to affirm, refuse to grant the motion, it may, if it concludes that the case is of such a character as not to justify further argument, order the cause transferred to a ‘ready for submission docket’. Causes on the ‘ready for submission docket’ will be submitted and disposed of from time to time as the regular order of business will permit. If the respondent’s brief is not on file at the time the motion is heard, the service and filing of the notice of motion to dismiss or affirm shall extend the time for filing respondent’s brief until the expiration of ten days after decision of the motion, or such further time as the court may allow. The court, on its own motion, may issue an order to show cause why an appeal from any such judgment or order should not be dismissed or the judgment or order be affirmed on the ground that the appeal is frivolous or otherwise without substantial merit. If a dismissal of the appeal or an affirmance of the judgment be not ordered on the hearing of the order to show cause, • the ease may be transferred to the ‘ready for submission docket’ and be disposed of -in like manner as on a motion to dismiss or affirm.” In the same number of “The State Bar Journal,” page 133 thereof, in an article concerning the new rule, the following statement is made: “The genesis of this rule is found in rule 7, subdivisions 4 and 5, of the Supreme Court of the United States, promulgated in principle as early as Dec'ember 22, 1911, and continued in amendments to the rules effective July 1, 1925, and July 1, 1928 (Pocket Supp., p. 10, vol. 1, U. S. Digest, 50 Sup. Court Rep. xxix), which provide as follows: 4.- The court will receive a motion to affirm on the ground that it is manifest that the appeal was taken for delay only, or that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. The procedure provided in paragraph 3 of this rule for motions to dismiss shall apply to and control motions to affirm. A motion to affirm may be united in the alternative with a motion to dismiss. 5. Although the court upon consideration of a motion to dismiss or a motion to affirm may refuse to grant the motion, it may, if it concludes that the case is of such a character as not to justify extended argument, order the cause transferred for