Shain v. People's Lumber Co.

Full title: JOSEPH E. SHAIN, Appellant, v. PEOPLE'S LUMBER COMPANY, Respondent

Court: Supreme Court of California

Date published: Apr 8, 1893

98 Cal. 120 (Cal. 1893)

32 P. 878

Opinion

         Motion to dismiss an appeal from the Superior Court of Ventura County.

         COUNSEL:

         Blackstock & Shepherd, for Appellant.

          W. H. Wilde, and E. S. Hall, for Respondent.

         JUDGES: In Bank. Harrison, J. Beatty, C. J., De Haven, J., Paterson, J., McFarland, J., Garoutte, J., and Fitzgerald, J., concurred.

         OPINION

          HARRISON, Judge

         The transcript in this case was filed October 20, 1892, and on November 1st the respondent stipulated with the appellant that he might have "twenty days in addition to the time allowed by the rules of this court in which to serve and file his points and authorities. .. . and that the order of the court may be entered herein in accordance with this stipulation upon its being filed." The stipulation was not, however, filed, nor was any order obtained thereon as was contemplated by it, but on the eighth day of December, upon an affidavit of Vincent Neale, one of the attorneys for the appellant, an order was made by the court "that appellant have twenty days additional time to that allowed by rule of court within which to prepare and serve his opening brief herein." The affidavit did not state the date when the transcript was filed, or when the time allowed by the rules of the court for filing points and authorities would expire, nor did it state whether any order or stipulation had been made granting time for filing points and authorities, and when the above order was asked for, the words "to that allowed by rule of court" were inserted therein before the order was signed. On the 19th of December, the respondent moved to dismiss the appeal upon the ground that no points and authorities had been filed on the part of the appellant; and on the 28th of December the appellant filed his points and authorities.

         Rule II. of this court requires the appellant to file with the clerk his printed points and authorities within thirty days after the filing of the transcript, and declares that the time so limited shall not be extended "except by order of the court upon stipulation of the parties, or an affidavit showing good cause therefor, and in no case for more than twenty days"; and rule V. provides that if the points and authorities are not filed within the time prescribed, the appeal may be dismissed on motion upon notice given. For the purpose, therefore, of enabling the court to determine whether an order extending the time to file points and authorities should be granted, the proper practice for an attorney who would seek such additional time is to show by the affidavit upon which he asks for the order, the date when the transcript was filed, and whether any time in addition to that limited by the rule has been given, either by order or by stipulation, so that it may be determined therefrom, whether it is within the discretion of the court to grant the time asked for. In the present case the time provided by the stipulation, as well as that granted by the order, covered the same period of time, viz., twenty days in addition to the time allowed by the rules of the court, and expired on the ninth day of December. The notice of the motion to dismiss the appeal was not served until the 19th of December, and at that date the respondent had the right under rule V. to a dismissal. The right of the respondent to have the appeal dismissed must be determined by the facts as they existed at the time that notice of the motion was given, and was not destroyed by the subsequent filing of points and authorities on the part of the appellant.

         Rules of court are designed to facilitate the business of the court as well as for the convenience of litigants, and the rule requiring the points and authorities on behalf of the respective parties to be filed within specified times after the filing of the transcript confers rights which may be enforced by the litigants. The right of the appellant to be heard depends in the first place upon his compliance with the provisions of the Code of Civil Procedure in taking his appeal, as well in the manner as within the time provided by that code, and after his appeal has been taken his right to a consideration thereof by this court depends upon his compliance with the rules of this court in perfecting his appeal by filing his transcript, and thereafter, his points and authorities, within the time specified in those rules. The rules themselves provide for additional time to be granted if by reason of any intervening cause, through no fault of the appellant, he may have been prevented from a strict compliance therewith; but, if the appellant would invoke such provision, he must bring himself within the terms upon which the favor is to be granted. If he neglects to procure a stipulation from the respondent, or an order of the court upon a proper affidavit, he is not in a position to resist a motion of the respondent to enforce the penalty whi ch the rules have declared shall follow such [32 P. 879] neglect.

         The motion to dismiss the appeal is granted.