Sanders v. Warden

McCOMB, J. Plaintiff appealed from a judgment of non-suit granted against her in an action to recover for services rendered to Francis E. Sanders during his lifetime.

The record in this court discloses the following:

1. May 12,1951, the record on appeal was filed.

2. June 13,1951, plaintiff was notified that unless an “opening brief is . . . filed within 30 days after this notice, the appeal . . . will be dismissed unless good cause is shown for relief from default. (Rule 17a.)”*

3. July 16, 1951, plaintiff applied for relief from default which application was denied,

[7084]. July 17, 1951, a brief not having been filed by plaintiff, the appeal was dismissed by the court.

5. July 27, 1951, on plaintiff’s ex parte application, the Presiding Justice directed that appellant’s opening brief be filed and the order of dismissal vacated.

6. Defendant has filed a brief to which plaintiff has replied and both parties have stipulated that the,cause may be submitted.

Defendant questions the jurisdiction of this court to hear the appeal upon its merits, contending that since the appeal was dismissed on July 17, 1951, pursuant to the provisions of rule 17(a), Rules on Appeal, supra, this court lost jurisdiction to hear the appeal on its merits, and that the purported order of July 27, 1951, attempting to set aside the order dismissing the appeal was void.

This objection is sound. After an appeal has been dismissed by the court it may be reinstated only by the court (1) for good cause shown by affidavit, and (2) after notice to the opposite party, pursuant to the provisions of section 473 of the Code of Civil Procedure. (Cf. Drummond v. West, 212 Cal. 766, 768 et seq. [300 P. 823]; Hagar v. Mead, 25 Cal. 598, 599 et seq.; Dorland v. McGlynn, 45 Cal. 18.)

Applying the foregoing rule to the record in the instant case it is apparent that there is no showing in the record that plaintiff met any requirement of the rule. Therefore the purported order of July 27, 1951, is void, the'cause is ordered off calendar, and the clerk is directed to issue a remittitur forthwith.

Moore, P. J., and Wilson, J., concurred.