Opinion
Rehearing Granted Dec. 24, 1942.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Suit by Clifford E. Clinton and another against Frank L. Shaw and others. From judgments of dismissal and orders relative thereto and from orders denying motions to strike cost bills and retax costs, plaintiffs appeal. On defendants’ motion to dismiss appeal.
Appeal dismissed.
COUNSEL
A. Brigham Rose, of Los Angeles, for appellants.
S. S. Hahn and W. O. Graf, both of Los Angeles, for respondents.
OPINION
PER CURIAM.
Respondents have moved to dismiss this appeal on the ground that appellants’ points and authorities were not filed within the time prescribed by Rule I, section 4, of the Rules for the Supreme Court and District Courts of Appeal, which provides that "Within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities * * *."
On the record before us the general conduct of this case appears to have been characterized by delay during most of the time which elapsed from its institution up to the hearing of the motion to dismiss the appeal in this court. The facts speak for themselves. The complaint was filed September 10, 1938. It is endorsed, "No sums iss’d." A demurrer to the complaint, however, was filed September 24, 1938, and was sustained by the court on November 2, 1938. Plaintiffs were allowed ten days to amend. An amended complaint was filed November 23, 1938. To it a demurrer was filed on December 12, 1938, and sustained by the court on January 10, 1939. On that date plaintiffs were given ten days’ time within which to file a second amended complaint if they desired to further prosecute the action. Instead of amending the complaint or taking any other step whatsoever in the case plaintiffs permitted it to stand neglected for nearly three years. Finally, on December 2, 1941, all but one of the defendants gave notice of motion to dismiss the action for want of prosecution, pursuant to the provisions of section 583 of the Code of Civil Procedure. This motion was granted on December 11, 1941, and on January 6, 1942, on a separately noticed motion, the action was dismissed as to the remaining defendant. Formal judgments of dismissal were entered and cost bills filed. Plaintiffs moved to vacate the orders of dismissal, to strike the cost bills, and to retax costs. All such motions were denied and plaintiffs’ notice of appeal from the several judgments and orders was filed February 13, 1942.
The clerk’s transcript was filed with this court on July 16, 1942; respondents’ notice of motion to dismiss appeal was served on the attorney for appellants on September 2, 1942, and filed herein on September 3, 1942; but it was not until September 15, 1942, one day before the hearing on the motion, that appellants presented for filing their points and authorities, sixteen printed pages in length.
At the hearing on the motion to dismiss, appellants’ counsel, in opposition to the motion, stated orally that he had relieved himself of all representation of the appellants’ business matters and had so informed them and thought they had other counsel; that less than sixty days prior to said hearing he had been re-employed by appellants for the purpose of representing them on this appeal; that his secretary had left to "get a better job" and he had been without a secretary for the past six weeks; and that he had had to give his attention to other business matters. No other showing in opposition to the motion was made.
If appellants’ points and authorities had been on file at the time the notice of motion to dismiss the appeal was given, that fact would constitute sufficient answer to the motion (Rule V, Rules for Supreme Court, etc.). Inasmuch as they were not so filed, the appeal must be dismissed unless a reasonable excuse for the delay appears. (Bourne v. Root, 1931, 117 Cal.App. 618, 620, 4 P.2d 264; Pretzer v. California Transit Co., 1929, 102 Cal.App. 630, 632, 283 P. 361.) No such excuse appears here and, as indicated above, appellants have not complied with section 3 of Rule XX by filing any "written opposition" to the motion. It is provided in section 3 of Rule V that such failure "may be deemed an abandonment of the appeal, authorizing a dismissal," but we have chosen to give full consideration to appellants’ oral opposition.
That the press of other business is an insufficient excuse is well established (see Pretzer v. California Transit Co., supra; Waugaman v. Richardson, 1925, 72 Cal.App. 10, 11, 236 P. 207; Berendsen v. Babdaty, 1923, 62 Cal.App. 185, 188, 216 P. 385). Moreover, the notice of appeal was filed in the trial court on February 13, 1942, and was signed by the same counsel as now appears for appellants. Assuming that such counsel resigned from the case subsequent to the filing of the notice of appeal, he was by his own admission again representing appellants on this appeal approximately sixty days prior to September 16, 1942. It therefore appears that his re-employment by appellants was within a few days of the filing of the clerk’s transcript on July 16, 1942, and that he had ample time in which to apply to this court for an extension of time within which to file appellants’ points and authorities when because of the loss of his secretary and the urgency of other business it became apparent to him that the points and authorities would not be ready to file within thirty days after July 16. No such extension of time was requested and no good cause has been shown for not requesting it.
Appellate courts are loath to dismiss appeals, without consideration on the merits, for failure to comply with rules of procedure but such rules are essential to the orderly handling and dispatch of the courts’ business and create rights which an adverse party is entitled to have enforced. (McCabe v. Healey, 1903, 139 Cal. 30, 32, 72 P. 359; Wood v. Mesmer, 1918, 39 Cal.App. 108, 110, 178 P. 314; Deist v. First Nat. Bank of Orange, 1938, 28 Cal.App.2d 379, 381, 82 P.2d 630.) Under the circumstances shown, a failure by us to grant the motion, if not a complete abuse of discretion, would at least constitute an unwarranted disregard of the rule. To uphold and respect such rule the appeal must be dismissed (see Bourne v. Root, supra, 1931, 117 Cal.App. 618, 620, 4 P.2d 264; Butler v. Starkweather, 1929, 101 Cal.App. 608, 609, 281 P. 1074; Berendsen v. Babdaty, supra, 1923, 62 Cal.App. 185, 188, 216 P. 385).
Appeal dismissed.
SCHAUER, P. J., and SHINN and PARKER WOOD, JJ., concur.