Butler v. Starkweather

YORK, J. The transcript on appeal herein was filed on June 14, 1929, and appellants’ opening brief was not presented for filing until September 20, 1929. Theretofore, on the fifth day of September, 1929, a notice of motion to dismiss the appeal was filed herein, it having been served on said day on the attorney for appellants. Section 4 of rule I of the Rules of the Supreme Court and of this court provides that: “Within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities. ...” Section 1 of rule V -provides that: “If the transcript of the record or appellant’s points and authorities be not filed within the time prescribed, the appeal may be dismissed, upon notice given, either on motion of the respondent or of the court in which the appeal is pending.” No extension of time was granted, and so far as the record discloses, none was asked for. The points and authorities were not on file at the date the notice of motion was served and filed. If the argument used by appellants upon this motion to dismiss had been directed to the court by way of a request for a continuance of time within which to file appellants’ opening brief or points and authorities, we might have something to pass upon, but it has always been held in cases where more than thirty days have thus elapsed and where no application is made for an extension of time and no good cause is shown for not making such application, and where the notice of motion to dismiss is served and filed before the memorandum of points and authorities is on file in this court, this court will have to dismiss the appeal. (Berendsen v. Babdaty, 62 Cal. App. 185 [216 Pac. 385]; Waugaman v. Richardson, 72 Cal. App. 10 [236 Pac. 207]; Welch v. Stratton, 73 Cal. App. 765 [239 Pac. 380] ; Walker v. Mathews, 58 Cal. App. 255 [208 Pac. 140].) The appeal is therefore dismissed. Conrey, P. J., and Houser, J., concurred.