108 Cal. 664 | Cal. | 1895
A motion is made to dismiss the appeal for failure to file the transcript within the time prescribed by the rules of this court, and that the respondent be allowed damages upon the ground that the appeal is not taken in good faith, but for the purpose of hindering and delaying the plaintiff in the collection of the judgment. In support of the latter part of the motion the attorney for the respondent has filed an affidavit stating that, after the rendition of the judgment, and prior to the service of the notice of appeal, one of the attorneys for the defendant proposed to him that the plaintiff accept a less sum than that for which judgment had been given, and informed him that, unless such less sum was accepted in full payment, an appeal would be taken, and the plaintiff delayed in the collec
The statements in this affidavit are not controverted by the appellant, and are corroborated by his failure to file any transcript in this court. As they must, therefore, be taken as admissions by him that they are correct, the respondent is entitled to the damages asked. (Duncan v. Grady, 99 Cal. 552.)
The appeal is dismissed, and the respondent is allowed fifty dollars damages as a part of his costs on appeal.
GtAkoutte, J., and Van Fleet, J., concurred.