Pastore v. Floyd

THOMPSON, J. The defendants filed a motion to dismiss the appeal in this case, under rule 42(a) of Rules on Appeal, for failure to prosecute the appeal with due diligence, and specifically because the appellant failed to procure the prepa[733]ration and filing of the transcript on appeal within the time allowed by rule 4, or at all. The appeal to the Supreme Court was transferred to this court.

In support of the motion to dismiss the appeal, notice of which was duly served on the attorneys of record for plaintiffs, the Clerk of the Superior Court of Tehama County filed her affidavit pursuant to section 42(a). No counteraffidavit was filed by plaintiffs, and no appearance in opposition to the motion was made in behalf of the plaintiffs. The uncontradieted averments of the clerk’s affidavit show that the suit was one to quiet title to real property, which was determined in Tehama County by the rendering and entry of judgment quieting title in the defendants, on November 20,1947. Notice of appeal to the Supreme Court was filed February 18, 1948. September 16, 1948, the cause was transferred to this court. The affidavit avers that “Notice to the Clerk to prepare a transcript on appeal was filed February 27, 1948.” No transcript on appeal has been prepared or filed.

Not only does the uncontradicted evidence in this ease show that no transcript on appeal was filed, and that the appellant failed to arrange for the payment of the reporter’s fees for transcribing and preparing the transcript, but the appellant, after due notice of the motion in this court to dismiss the appeal, failed and neglected to appear or oppose that motion. Under rule 41(c) of Rules on Appeal the appeal is deemed to have been abandoned when, after notice of motion to dismiss, the appellant fails to appear or .oppose the motion. (Cunningham v. Taylor, 87 Cal.App.2d 701 [197 P.2d 565].)

For the foregoing reasons the appeal is dismissed.

Adams, P. J., and Peek, J., concurred.