Summary
In Southern Counties Thrift Co. v. Rairdon, (1941) 43 Cal.App.2d 149 [ 110 P.2d 679], and some 17 other cases which need not be listed here, the courts have refused to dismiss appeals where the brief or transcript, although not on file at the time of giving of notice, was on file prior to the hearing of the motion.
Summary of this case from Clinton v. ShawOpinion
Docket No. 2911.
February 18, 1941.
MOTION to dismiss an appeal from a judgment of the Superior Court of Orange County. Harry C. Westover, Judge. Motion denied.
Frank T. O'Neill and Brooke Mohun for Appellant.
Forgy, Reinhaus Forgy and C.E. Sprague for Respondents.
This is an appeal from a judgment against appellant Southern Counties Thrift Co., a corporation, and in favor of respondent C.W. Rairdon. [1] Respondent Rairdon, on January 10, 1941, filed a motion to dismiss the appeal under rule I, section 4, of the Rules for the Supreme Court and District Courts of Appeal, for the reason that appellant failed to file its opening brief within the time prescribed in said rule. The motion was duly set down for hearing for February 13, 1941. On February 10, 1941, appellant filed its opening brief. Where the brief is filed before the motion comes on for hearing appellant has sufficiently complied with the rule to justify a denial of the motion. ( Hall v. Wolford, 22 Cal.App. (2d) 537 [ 71 P.2d 596]; Graybiel v. Consolidated Associations, Ltd., 14 Cal.App. (2d) 547 [ 58 P.2d 665].)
The motion to dismiss the appeal is denied.
Barnard, P.J., concurred.