Steiner v. Davis

JENNINGS, J. —Respondent’s notice of motion to dismiss the appeal in this action was filed on May 17, 1937. It was therein stated that the basis for the motion was that appellant had failed to file a record on appeal within the time required by the rules of this court. The motion was noticed for hearing on June 8, 1937. Prior to this date the clerk’s transcript and appellant’s opening brief were filed with this court. It appears from respondent’s notice of motion that the judgment from which the appeal has been taken was rendered after a demurrer to appellant’s third and supplemental complaint had been sustained and that no evidence was submitted to the trial court. No record other than that provided by the clerk’s transcript now on file will be required for determination of the appeal. The fact that the clerk’s transcript was on file at the time respondent’s motion for dismissal was presented is a sufficient reason for denying the motion. (Jaques v. Board of Supervisors, 22 Cal. App. 627 [135 Pac. 686]; Snodgrass v. Hand, 125 Cal. App. 265 [13 Pac. (2d) 769]; Sampson v. Boysen, 5 Cal. App. (2d) 282 [42 Pac. (2d) 704].)

The motion to dismiss the appeal is denied.

Barnard, P. J., and Marks, J., concurred.