North v. Evans

California Court of Appeal Jan 26, 1934 No. Docket No. 1098.Published

Before: Jennings

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Holding. The court denied the motion to dismiss the appeal, finding that the appellant's brief was filed prior to the hearing, the appeal was not based on a bill of exceptions, and the appeal was not frivolous because the respondent conceded a point of error regarding attorney's fees.

Issues

Whether an appeal should be dismissed for failure to timely file points and authorities when the brief is filed before the hearing.
Whether an appeal should be dismissed for failure to file a bill of exceptions when the appeal is based on the judgment-roll.
Whether an appeal should be dismissed as frivolous when the respondent concedes a point of error raised by the appellant.

Disposition. denied

Quotations verified verbatim against the opinion

“it has generally been held that when a motion for dismissal of an appeal is made on the ground of failure of the appellant to file points and authorities within the prescribed time the motion will be denied if, at time of hearing, it appears”

“The failure to file a bill of exceptions is not a valid ground for the motion to dismiss the appeal for the reason that this appeal is not presented on a bill of exceptions.”

“respondent’s concession that, for the purposes of this motion, it is well taken and should be sustained carries a complete refutation of respondent’s contention that the appeal is frivolous.”

JENNINGS, J.

Motion by respondent to dismiss appeal. On October 9, 1933, respondent gave notice that on November 13, 1933, a motion to dismiss the appeal would be presented. The grounds for the motion were stated to be, first, failure of appellant to file points and authorities within the time prescribed by the rules of this court and, second, failure of appellant to cause a bill of exceptions to be prepared and settled. On October 31, 1933, appellant filed her opening brief. The regular calendar day of this court for the month of November, 1933, was Tuesday, November 14th, and respondent not having noticed the motion for hearing on said date it was not placed on the calendar which was heard on November 14, 1933. On November 22, 1933, respondent gave notice that on December 12, 1933, a supplemental motion to dismiss the appeal would be presented. The notice stated that the motion for dismissal of the appeal would be based upon the grounds set forth in the motion which was filed in October and upon the grounds set out in the supplemental motion filed on November 22, 1933. The additional grounds stated in the supplemental motion are that appellant’s opening brief shows on its face that the questions on which the decision of the cause depends are so unsubstantial as not to require further argument and that the appeal was taken solely for the purpose of delay. The motion was presented on December 12, 1933.

It is our opinion that the motion may not be granted for the reasons urged. The records of this court show that

[436]

appellant’s opening brief was filed on October 31, 1933. At the time the motion was presented, therefore, the brief was on file and it has generally been held that when a motion for dismissal of an appeal is made on the ground of failure of the appellant to file points and authorities within the prescribed time the motion will be denied if, at time of hearing, it appears that the brief is then on file.

(Fishman

Silva,

108 Cal. App. 121 [291 Pac. 430];

Tyner

North v. Evans

AI Brief

JENNINGS, J.

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