Smith v. Wagner

MARKS, J.

On December 21, 1932, respondents filed a notice of motion to dismiss this appeal, or affirm the judgment, on the ground that the appeal is taken for delay only and that the questions on which the decision of the case depends are so unsubstantial as not to require further argument. The motion was made and argued before this court on January 10, 1933.

We find that on January 26, 1933, counsel filed in the office of the clerk of this court the following stipulation: “It is hereby stipulated by and between the parties hereto that the appellant may file a supplemental opening brief in the above appeal within fifteen days after decision upon respondents’ motion to dismiss. The respondents may have thirty days thereafter within which to make any supplement to their reply brief, and that the appellant have fifteen days thereafter within which to file his closing brief. ’ ’

We construe this stipulation, in effect, a virtual abandonment of the motion. It is apparent the appellant intends to file a supplemental opening brief. We do not deem it necessary to search the record for any errors not now argued in order to determine whether there may be

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substantial grounds not presented in the opening brief upon which he may ask a reversal of the judgment.

The motion to dismiss is denied.

Barnard, P. J., and Jennings, J., concurred.