Opinion
Docket No. 392.
September 2, 1932.
MOTION to dismiss appeal from a judgment of the Superior Court of Fresno County. S.L. Strother, Judge. Appeal dismissed.
The facts are stated in the opinion of the court.
Christian Hoeppner and Gilbert H. Jertberg for Appellant.
Wakefield Hansen for Respondents.
Plaintiff, David Shanfeld, brought suit against the defendants, Guy H. Munson and Anna Munson, husband and wife, for damages as a result of personal injuries sustained by him on February 18, 1930, in a collision between an automobile truck driven by plaintiff and an automobile driven by the defendant Anna Munson. In said collision said Anna Munson also sustained personal injuries, on account of which she and her husband brought a separate action against the plaintiff herein for damages. The cases were consolidated and tried together before the court and a jury. The verdict was in favor of the defendants in the present action and in favor of plaintiff herein as defendant in the other case. Judgment was entered accordingly. From the judgment entered herein plaintiff has appealed. [1] The transcript on appeal was filed on May 4, 1931. Respondents gave appellant written notice on July 21, 1932, that they would move the court on August 9, 1932, to dismiss the appeal on the ground that appellant's points and authorities had not been filed within the time allowed by the rules of court. Rule I, section 4, of this court required the appellant to file points and authorities on or before June 3, 1931. No order was made granting any extension of time for such filing. Rule V provides for dismissal of an appeal on motion for failure to file points and authorities within the time allowed. Pursuant to said notice, respondents made their motion on August 9, 1932, to dismiss the appeal. The rules also provide that such motion to dismiss shall be denied if points and authorities are on file at the time the notice is given; but no points and authorities had been filed at that time nor when the motion to dismiss was made. No diligence has been shown to comply with the rules nor to resist the motion. No showing was made that the appeal is meritorious.
The respondents are entitled to a dismissal of the appeal. ( McCabe v. Healey, 139 Cal. 30 [ 72 P. 359]; Coats v. Coats, 146 Cal. 443 [ 80 P. 694]; Gilbert v. United States F. G. Co., 97 Cal.App. 42 [ 274 P. 1023]; Welch v. Stratton, 73 Cal.App. 765 [ 239 P. 380]; Pierce v. Employers' Indemnity Exchange, 33 Cal.App. 98 [164 P. 403]; Barnhart v. Conley, 17 Cal.App. 230 [ 119 P. 200].)
The appeal is therefore dismissed.
Marks, Acting P.J., and Jennings, J., concurred.