Bruce v. Risley

MARKS, J. Respondent has moved to dismiss this appeal or affirm the judgment on the ground that appellant has failed to print in his brief, or a supplement thereto, any portion of the typewritten record relied upon by him, or to state the substance of such record parenthetically, referring to the line and page of the transcript for verification, and other defects in such brief. (Sec. 953c, Code Civ. Proc.; sec. 3, rule VIII, Rules for the Supreme Court and District Courts of Appeal.)

Appellant has filed a motion for. an order permitting him to file a supplementary opening brief to correct the admitted deficiencies in the one now on file. Counsel have stipulated that such order may be made.

[506]We regard this stipulation as a virtual abandonment of the original motion to dismiss or affirm. (Smith v. Wagner, 129 Cal. App. 694 [19 Pac. (2d) 250].)

Appellant’s motion for an order permitting him to file a supplementary opening brief is granted and thirty days is given him so to do.

Respondent’s motion to dismiss the appeal or affirm the judgment is denied without prejudice to a renewal of the motion after the supplementary brief is filed if he be so advised.

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