Barnhart v. Conley, Civ. No. 1031.

Civ. No. 1031. | Cal. Ct. App. | Oct 11, 1911

The transcript in this case was filed April 1, 1911. Appellants filed no points or authorities until after June 9, 1911, at which time a motion to dismiss the appeal on account of failure to file such points and authorities was duly served and filed. Thereafter, on June 26, 1911, appellants filed their opening brief. The affidavit in opposition to respondent's motion is insufficient to justify the court in refusing to grant the motion. Rule II, subdivision 4, [144 Cal. xli, 78 Pac. vii], of the supreme court provides that the points and authorities must be filed within thirty days after the filing of the transcript, and, in the absence of stipulation, twenty days' additional time may be granted by the court, good cause being shown therefor. No stipulation extending time or order of court in that regard appears. The rule above quoted, requiring the points and authorities on behalf of the respective parties to be filed within a specified time after the filing of the transcript, confers rights which may be enforced by litigants. (McCabe v. Healey, 139 Cal. 32" court="Cal." date_filed="1903-04-04" href="https://app.midpage.ai/document/barnes-v-berendes-3307317?utm_source=webapp" opinion_id="3307317">139 Cal. 32, [72 P. 359" court="Cal." date_filed="1903-04-03" href="https://app.midpage.ai/document/mccabe-v-healey-3302668?utm_source=webapp" opinion_id="3302668">72 P. 359].) Respondent, therefore, possesses the right to have this appeal dismissed. The determination of such right being controlled by the facts existing at the time the notice of motion was given, the subsequent filing of points and authorities had no effect to restrict such right.

The motion to dismiss the appeal must be granted, and it is accordingly ordered.