Fresno V Co. v. Dagdigian

THE COURT. The appellant Fresno V Company has filed herein its opening brief and at the same time its motion to dismiss the cross-appeal of the claimant Raymond Dagdigian. The respondent had applied for leave to file a late claim in the proceeding for the dissolution of the corporation. An order denying such leave was entered and thereafter on motion of Dagdigian a new trial thereof was granted. The appeal is taken from the order granting a new trial. No appearance was made on behalf of Dagdigian prior to or at the hearing of the motion to dismiss the cross-appeal. This in itself might well authorize a dismissal. (Rule 41(c), Rules on Appeal.)

However, upon a review of the record, it appears that the questions presented by the motion to dismiss the cross-appeal are largely the same questions necessary to be determined upon the decision of the appeal. There would seem to he no good reason, therefore, to determine upon this motion the same questions that must be determined when the appeal [252]is decided. For that reason, the motion to dismiss is held in abeyance until the decision upon the merits. (Estate of Dabney, 101 Cal.App.2d 855 [226 P.2d 380] ; rule 41(b), Rules on Appeal.)

Decision of motion to dismiss held in abeyance.