Yolo Water & Power Co. v. Edmands

ELLISON, P. J.,

pro

iem.

Motion to dismiss an appeal. The action was brought by plaintiff, a Public Service Corporation, against the defendants to condemn certain real property situate in Lake County, California. After trial by jury a judgment was rendered on the twenty-second day of October, 1917, condemning the lands asked for by the plaintiff and fixing the defendants’ damages in the gross sum of one hundred and five thousand six hundred dollars. Thereafter, on the twenty-second day of October, 1917, the plaintiff filed its notice of appeal from said judgment. The transcript on appeal was filed in this court on the fourteenth day of May, 1918. On the sixth day of September, 1919, no brief having been filed on behalf of the plaintiff and appellant, the respondents filed in this court a notice of motion to dismiss said appeal on the ground that plaintiff and appellant had failed to file any points and authorities on appeal in said action within the time required by law, the rules of the supreme court and the district court of appeal of the state of .California.

The motion was based upon a formal notice, the records and files in said cause on file in this court, and a certificate of the clerk of the county of Mendocino, showing the entry of said judgment, the notice of appeal, and was, also, supported by the affidavit of Mr. H. L. Preston, one of the attorneys for the respondents.

The affidavit of Mr. Preston was to the effect that no brief or points and authorities had at that time been filed by the appellant and that no extension of time had ever been granted by the supreme court or by the district court of appeal for the third district, and that the time allowed by

[412]

law and the stipulation of counsel and the order of this court had long since expired for plaintiff and appellant to file its points and authorities in the above-entitled action.

It may be added that the record shows that the appellant was granted by stipulation several extensions of time in which to file its opening brief and that the last written stipulation expired on September 15th, 1918.

Mr. John S. Partridge, one of the attorneys for respondents, made an affidavit in which he stated: “It is true that in September, 1918, said Theodore A. Bell became a candidate for Governor of the state of California and that affiant as a matter of courtesy extended to the said appellant such additional time as might be necessary, due to the candidacy of Mr. Bell; that affiant has no recollection of any conversation with Mr. Bell after the election in November, 1918, but affiant states that if he did state to Mr. Bell over the telephone that he might take such time as he needed after the conclusion of the campaign, it was not the idea or intention of affiant that the time should be extended for such an unreasonable period as the month of September, 1919. ”