Freund v. Hamilton Construction Co.

California Court of Appeal Jul 1, 1930 No. Civ. No. 7487Published

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Holding. The court denied a motion to dismiss appeals for lack of due diligence because the record did not demonstrate that the proceedings for a transcript in the lower court had been terminated.

Issues

Whether an appeal should be dismissed for failure to prosecute with due diligence when the record does not show the termination of transcript proceedings in the lower court.

Disposition. denied

Quotations verified verbatim against the opinion

“the record fails to show that the proceedings for a transcript in the court below have been terminated and the motion must for that reason be denied.”

THE COURT. A motion by Martha Freund, a party to the above-entitled actions for an order dismissing the appeals of Hamilton Construction Company and John E. Hamilton and John E. Hamilton individually and doing business under the name and style of Hamilton Construction Company taken therein, upon the ground that said appeals have not been prosecuted with due diligence.

It appears there has been delay in the filing of the transcript on appeal in this court, but the record fails to show that the proceedings for a transcript in the court below have been terminated and the motion must for that reason be denied. (Rule 6, sec. 1, Rules of the Supreme Court; Crocker v. Crocker, 76 Cal. App. 606 [245 Pac. 438]; Smith v. Jaccard, 20 Cal. App. 280 [128 Pac. 1023, 1026].)

The motion is denied.

Freund v. Hamilton Construction Co.

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