216 P. 385 | Cal. Ct. App. | 1923
Plaintiffs have presented a motion to dismiss the appeal of defendant Badaty herein for the reason that he has failed to file his opening brief within the time allowed by rule of this court, and the said defendant has filed a motion to be relieved from such default.
It appears that appellant was first late in filing the transcript on appeal in that while it should have been filed not later than January 3, 1923, it was not until February 12, 1923, that it was actually filed. At that time the attorney representing plaintiffs wrote a letter regarding the matter of further delay to Bernard Potter, Esq., who was representing the appellant. It is not denied that the letter was received by Mr. Potter. A copy of the letter is as follows:
"February 12th, 1923.
"Mr. Bernard Potter,
"Title Insurance Building,
"Los Angeles, Calif.
"Dear Mr. Potter:
"I have just signed the stipulation and acknowledged service on your transcript in the Babdaty case, and Parker Stone told me that they would call for it to-morrow, and it will then be filed. In view of the very considerable delay in filing the transcript, which was inexcusable in your client, I am going to insist on the brief being filed within the proper time, which, as I figure it, will be on or before Thursday, March 15th. In view of the consideration which I have shown in the matter of the transcript, I think you will agree with me that this is only fair, and will also understand that my complaint in the matter is directed at your client and not at your own good self.
"With best personal regards, I am,
"Yours very truly,
"SAMUEL H. FRENCH."
Subdivision 4 of rule II of this court (176 Pac. viii) provides that "within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities." As is stated in the letter to Mr. Potter, the appellant's opening brief was due to be filed with *187
the clerk of this court not later than March 15, 1923. On April 13, 1923, which was twenty-nine days after appellant's opening brief was past due, and no brief having been filed in his behalf, respondents served upon attorneys for appellant their notice of motion to dismiss the appeal herein. Appellant does not contest the facts, but seeks to be relieved because of "mistake, inadvertence and excusable neglect" under the provisions of section
Aside from the presumed knowledge possessed by the attorney representing appellant as to the time within which his points and authorities should, under the rule, be filed with the clerk of this court, the letter which was written to appellant's attorney by the attorney representing respondents particularly directed attention to former delays with reference to the filing of the transcript on appeal and, after pointing out that as to the briefs he would insist on their *188 being filed within the proper time, specified "Thursday, March 15th" as being the limit for filing same.
[1] The fact that appellant's counsel was under an unusual pressure of work and that his general health was poor cannot be accepted as a sufficient reason for excepting his case from the salutary rule requiring briefs to be filed within a certain time. If the law matters entrusted to his care were demanding so much of his time that it was an impracticability, considering the state of his health, for him to properly attend to the preparation of the opening brief in this case within the time permitted under the rule, the probabilities are that he could have obtained an extension of time either from opposing counsel or by an order of this court. It is said in Bailey v.Taaffe,
As showing generally that appellant is not entitled to the relief which he seeks, see McFadden v. Dietz,
Counsel's illness apparently was not so serious as to prevent him from attending to some of his business for other clients, and the fact that he chose to attend to such business rather than to the matter of preparing the brief in this case does not present a satisfactory reason for granting relief to appellant. (Elliott v. Shaw,
[2] That counsel did not personally examine his calendar nor have his attention directed by either his stenographer or by his clerk to the fact that his brief either was about to become due or that the time had elapsed within which under the rule he might properly file same, is not enough to bring his neglect within the terms of the statute. The purpose of the rule is not only to facilitate the business of the court, but as well for the convenience and ultimate advantage of litigants. In order that it may be of value, it must be enforced.
It follows that respondents' motion to dismiss the appeal should be granted, and that appellant's motion to be relieved from his default should be denied. It is so ordered.
*190Conrey, P. J., and Curtis, J., concurred.