Clinton v. Shaw

SHINN, J. Respondents moved to dismiss the appeal upon the ground that appellants’ brief was not filed within 30 days after the filing of the transcript on appeal, as prescribed by rule I, section 4, Rules of the Supreme Court and District Courts of Appeal. Upon the hearing, appellants presented oral, but no written, opposition to the motion and the same was granted. In ordering a rehearing, leave was granted to appellants to present written opposition, which has been done in the form of an affidavit of the attorney for appellants.

The transcript was certified by the trial judge May 4, 1942, and was filed with the clerk of this court July 16, 1942. Appellants’ brief was due 30 days thereafter. As it was not filed and no extension of time was granted, respondents on September 3 gave notice of motion to dismiss the appeal. Upon September 15, one day prior to the hearing, appellants presented their brief for filing.

Under rule V an appeal may be dismissed for failure [632]to file appellant’s brief within the prescribed time, although the rule provides that if the brief be on file at the time the notice is given, that fact constitutes a sufficient answer to the motion. Upon the arguments appellants contended that the delivery of the brief to the clerk for filing prior to the hearing on the motion was likewise a sufficient answer and they have cited decisions of the District Court of Appeal in two separate districts in support of their position. In Southern Counties Thrift Co. v. Rairdon, (1941) 43 Cal.App.2d 149 [110 P.2d 679], and some 17 other cases which need not be listed here, the courts have refused to dismiss appeals where the brief or transcript, although not on file at the time of giving of notice, was on file prior to the hearing of the motion. While these cases do support the stand of appellants, there are reasons which impel us to give the rule the construction which it has always been given by the Supreme Court and a stricter application than it received in the cases mentioned. The rule in question has been a rule of the Supreme Court in substantially its present form for all of 70 years. In Welch v. Kenney, (1874) 47 Cal. 414, it was held that where the transcript was not on file at the time of service of notice to dismiss the appeal, the filing of the transcript before the hearing of the motion was not a sufficient answer, the court saying, “Circumstances, if any, going to excuse the apparent default, must, in such case, also be shown by the appellant, the sufficiency of which circumstances must be determined by the Court.” The Supreme Court has never given the rule a different construction or departed from the policy first announced of requiring a showing of good cause before excusing the appellant’s default, even when the brief or transcript, although not on file at the time of the giving of the notice, is filed or tendered for filing prior to the hearing of the motion. (Raisch Improvement Co. v. Arata, (1924) 193 Cal. 573 [226 P. 399] ; Coats v. Coats, (1905) 146 Cal. 443 [80 P. 694]; McCabe v. Healey, (1903) 139 Cal. 30 [72 P. 359]; Shain v. People’s Lumber Co., (1893) 98 Cal. 120 [32 P. 878]; Pio v. Aigeltinger, (1892) 97 Cal. 81 [31 P. 895] ; Chapman v. Bank of California, (1891) 88 Cal. 419 [26 P. 608]; Hoyt v. San Francisco etc. R. R. Co., (1891) 87 Cal. 610 [25 P. 160,1066]; Carter v. Paige, (1888) 77 Cal. 64 [19 P. 2]; Heinlen v. Southern Pac. R. R. Co., (1884), 65 Cal. 304 [4 P. 15] ; Page v. Latham, (1882) 60 Cal. 601; Smith v. Arnold, (1882) 60 Cal.