Mondo v. Schwartz

ADAMS, P. J. A notice of motion to dismiss the appeal in this action was filed by respondents on April 15, 1949, same being supported by a certificate of the clerk of the trial court which shows that notice of appeal was filed August 13, 1948, but no arrangements were thereafter made for preparation of the record on appeal as provided by the Rules on Appeal; and that on the date of the certificate, to wit, February 23, 1949, no transcript had been prepared or filed in that court.

Notice of the motion was duly served on counsel for appellants but they filed no opposition thereto nor any request to be relieved from default. No record has been filed in this court, and on June 2, 1949, the day set for hearing of said motion, there was no appearance for appellants.

Counsel for appellants has, however, advised the court that his clients have failed to furnish funds for payment of costs on appeal, though often requested so to do, and have failed to answer letters written to them by said counsel; and that counsel therefore assumes that appellants have abandoned their appeal.

Rule 41(c) of the Rules on Appeal provides that failure of an appellant to appear and oppose a motion to dismiss an appeal, after due notice of motion, or to file a written opposi-[1] [524]tion to the motion, m$y be deemed an abandonment of such appeal, authorizing a dismissal.

We deem that this appeal has been abandoned, and it is dismissed accordingly.

Sehottky, J. pro tern., and Thompson, J., concurred.