Murphy v. Krumm

CURTIS, J. — This is a motion by plaintiffs to dismiss the appeal of defendants because of the latter’s failure to present their record on appeal within the time required by law.

The following chronology of events is material to the consideration of this motion: On June 23, 1941, the judgment in question was rendered and from the respective adverse portions thereof plaintiffs and defendants took separate appeals. On August 18, 1941, the parties stipulated that both appeals might be heard on a single transcript and “that each appellant will pay his own filing fee in the Court of Appeal.” On October 3, 1941, the clerk’s and reporter’s transcripts were delivered to the clerk of the District Court of Appeal, Fourth District, and he gave notice of such receipt to the respective parties. On October 4, 1941, the filing fee of plaintiffs as appellants was paid and the transcripts were filed. On October 27, 1941, the parties entered into a stipulation, approved by order of said District Court of Appeal, whereby defendants were given until November 30, 1941, in which to file their opening brief, plaintiffs were allowed thirty days thereafter to answer and file their opening brief, and defendants were then to have thirty days in which to file their reply brief. No extension of time beyond November 30, 1941, [848]for the preparation, service and filing of defendants’ opening points and authorities have been granted either by order of court or by counsel for plaintiffs. On March 5, 1942, and in response to notices received during the prior two months from plaintiffs’ counsel objecting to the delay in the filing of defendants’ opening brief and warning that such continued course of procrastination would provoke a motion to dismiss defendants’ appeal, defendants’ counsel notified plaintiffs’ counsel that said brief was then in the hands of the printer and would be ready on or before March 15, 1942. Plaintiffs’ notice of motion to dismiss defendants’ appeal was served and filed on May 18, 1942, and it specified June 9, 1942, as the day for hearing before the above-mentioned District Court of Appeal. In support of their motion to dismiss, plaintiffs on May 28, 1942, filed a certificate of the county clerk of the county wherein the action was tried. On said last-mentioned date, that is on May 28, 1942, defendants paid their filing fee, and on June 5, 1942, they filed their opening brief.

The motion to dismiss was heard by said District Court of Appeal on June 9, 1942, as calendared, and was denied by order of June 12, 1942. (126 P.2d 908.) For the purpose of clarifying a misapprehension of the principles of law governing the disposition of such motion, this cause and the motion were transferred to this court in response to plaintiffs’ petition for hearing filed herein.