Opinion
Docket No. 8755.
March 13, 1933.
MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Thomas C. Gould, Judge. Appeal dismissed.
The facts are stated in the opinion of the court.
W.T. Kendrick, Jr., and Walter L. Bowers for Appellant.
Bernard D. Lane for Respondent.
THE COURT.
On petition for rehearing after order dismissing appeal.
The order as entered in the minutes reads as follows: "Motion is granted and appeal is dismissed." The court had prepared the following memorandum which by inadvertence was not entered in full in the minutes. "By the Court: On Motion for dismissal of appeal on account of failure of appellant to file brief within the time allowed by section 4 of Rule I, and section 1 of Rule V of the Rules of Practice of this court. It appearing from the record that no brief was served or filed within the time provided; and that no application for extension of time was made or granted; and that no sufficient excuse for failure to serve and file brief has been shown; motion is granted and the appeal is dismissed. ( Bourne v. Root, 117 Cal.App. 618, bottom of p. 620 [ 4 P.2d 264].)"
In the case of Bourne v. Root, supra, the court said: "Under rule V of the rules governing this court, if the brief is on file at the time the notice of motion to dismiss the appeal is given, that fact alone is sufficient to defeat the motion. If the brief is not filed until after notice of motion to dismiss has been given, unless a reasonable excuse for delay is shown, the appeal will be dismissed. The sufficiency of such showing is a question to be determined by the court. ( Carter v. Paige, 77 Cal. 64 [19 P. 2].) Where no sufficient excuse is shown, an appeal may be dismissed even though the brief is filed two days after service of the notice of motion ( Coats v. Coats, 146 Cal. 443 [ 80 P. 694])." [1] In this case the transcript on appeal was filed October 18, 1932. On November 30th notice was given of motion to dismiss, — motion to be presented December 27th. On December 27th hearing was continued to January 23, 1933. The brief was not offered for filing until January 21st. The court was of the opinion that sufficient excuse for the delay had not been shown, and that under the rule as above stated in Bourne v. Root the appeal should be dismissed.
There appears no sufficient reason for change in the decision. For this reason the petition for rehearing is denied.