Childress v. Peterson

California Court of Appeal Sep 12, 1940 No. Civ. No. 2715Published

Before: Marks

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Holding. The court held that the filing of an appellants' opening brief prior to the hearing of a motion to dismiss for failure to timely file said brief constitutes a sufficient answer to the motion.

Issues

Whether an appeal should be dismissed when the appellants' opening brief is filed after the deadline but before the motion to dismiss is heard.

Disposition. denied

Quotations verified verbatim against the opinion

“Appellants ’ opening brief was filed on the same day. This has been held a sufficient answer to the motion to dismiss.”

MARKS, Acting P. J. This is a motion to dismiss this appeal because appellants' opening brief was not filed within the time provided by section 4 of rule I of the Rules for the Supreme Court and District Courts of Appeal.

Our record shows that the cleik’s and reporter's transcripts were filed on June 22, 1940. On August 19, 1940, respondents filed their notice of motion to dismiss the appeal. Appellants ’ opening brief was filed on the same day. This has been held a sufficient answer to the motion to dismiss. (Toth v. Metropolitan Life Ins. Co., 113 Cal. App. 55 [297 Pac. 564] ; North v. Evans, 114 Cal. App. 714 [300 Pac. 893] ; Lisle v. Ragle, 10 Cal. App. (2d) 758 [52 Pac. (2d) 608] ; Hall v. Wolford, 22 Cal. App. (2d) 537 [71 Pac. (2d) 596].)

The motion is denied.

Griffin, J., concurred.

Childress v. Peterson

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