116 Cal. 41 | Cal. | 1897
There has been submitted in this case a motion on behalf of the Abstract and Title Company, a corporation, for the substitution of said corporation as defendant and respondent in the place of Melville Archibald; and also a motion by said corporation and the defendant and respondent, Fannie Archibald, to dismiss the appeal herein upon the ground of a failure of appellant to file his points and authorities within the time prescribed by the rule of this court.
The motion to substitute said corporation as defend
But it appears that the said Melville Archibald sold and assigned all his interest in said judgment to the said corporation; and we think that the motion to dismiss the appeal may be considered as a motion made by the respondent, Fannie Archibald, and the said corporation as the successor in interest of the said Melville Archibald. And, as the transcript was filed in March, 1894, and no points and authorities have been filed, the motion to dismiss, under the rule, should be granted. There is an affidavit on file on behalf of the appellant, that on the eighth day of December, 1894, the said Melville Archibald filed a petition in insolvency, and was adjudged insolvent, and that no assignee in insolvency has been appointed; but this fact did not excuse the appellant for not filing his points and authorities in time. (Stewart v. Spaulding, 72 Cal. 264; Merritt v. Glidden, 39 Cal. 564; 2 Am. Rep. 479; O’Neil v. Dougherty, 46 Cal. 576; Hestres v. Brennan, 37 Cal. 388.)
The motion for substitution is denied, and the mo
Henshaw, J., and Temple, J., concurred.