Drummond v. West

[767]

SEAWELL, J.

Plaintiffs and appellants petition this court to set aside an order heretofore made on December 2, 1930, dismissing their appeal for insufficiency of their opening brief, and to grant them additional time to file a supplemental brief which shall comply with the code provisions relating thereto and the rules of this court.

Respondent, on September 4, 1930, filed in this court proof of personal service upon appellants of a notice that at the September calendar of this court in Los Angeles she would move to dismiss said appeal for failure of appellants’ opening brief to comply with section 953c, of the Code of Civil Procedure, which provides that the parties “must print in their briefs or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court”. Respondent’s attorney, in an affidavit attached to the notice, also claimed that the brief was defective in particulars which would constitute a violation of rule VIII of this court, which requires that the briefs must present each point separately, under an appropriate heading, showing the nature of the question to be presented. Said opening brief consisted of but eleven pages and was deficient dn essential respects. The transcript of testimony consisted of 242 pages of typewritten matter.

When the motion to dismiss came before this court on September 15th it was continued to the December Los Angeles calendar at the request of respondent’s attorney. This continuance would appear to have been entered pursuant to a stipulation dated September 15th between respondent’s attorney and Thomas R. Lynch, who was then acting as attorney for appellants. Said stipulation was as follows: “It is hereby stipulated and agreed by and between the parties hereto, represented by their respective counsel, that the respondent’s motion to dismiss the appeal herein may go over to the next term of this Court held in Los Angeles, and that appellants may have twenty days from this date for the filing of a supplemental or substitute brief.” Appellants object to the sufficiency of the service of notice of the motion to dismiss, contending that the address at which a copy is averred to have been left for appellant John T. Drummond was not his place of business, as the affidavit of service recites, but that it was a butcher-shop at which he occasionally traded. Any defect in the service of