Headstrom v. Hellieson — 136 Cal. 498

Majority

p. 498

[S. F. No. 3026.

Department Two.

June 6, 1902.]

OLIF HEADSTROM et al., Respondents, v. THEODORE HELLIESON, Appellant.

Headnote

Appeal—Dismissal—Pkiob Motion Pending—Laches—New Ground. —The fact that a prior motion is pending to dismiss appeals for insufficiency of the undertakings filed thereon, upon which the appellant has asked leave to file new undertakings, cannot excuse the laches of the appellant in failing to file his points and authorities as required by the rules of the court, and to apply for an extension of time therefor, and the respondent is entitled to have the appeals dismissed upon another motion made upon the new ground of such laches.

MOTION to dismiss appeals from a judgment of the Superior Court of Santa Clara County and from orders denying a motion to set aside the judgment and refusing to set aside a default. A. L. Rhodes, Judge.

The facts are stated in the opinion of the court.

Will M. Beggs, for Appellant.

W. T. Aggeler, for Respondents.

Respondents moved to dismiss the appeals of defendant upon the ground of the insufficiency of the undertakings filed to support them. Appellant sought to meet the motion by filing new undertakings approved by the chief justice of this court. While this motion to dismiss was under advisement, respondents made another motion to dismiss, based upon the provisions of subdivision 4 of rule 2 of this court, for failure of appellant to file his points and authorities within thirty days after the filing of the transcript. It is admitted that the points and authorities were not filed, but appellant seeks to excuse himself because the first motion to dismiss his appeals was still pending, and he did not know whether it would be granted or not. This, however, affords no excuse for his laches, and respondents are entitled to insist upon the right which the rule gives them. As was said in White v. White, 112 Cal. 577 , where the motion was based upon the

p. 499

failure of the appellant to file his transcript in time: “The fact that a previous motion to dismiss the appeal was pending did not of itself extend the time within which the appellant might file the transcript. Whether the pending of such motion would have been deemed by the court a sufficient ground for extending the time for filing the transcript need not be considered. The appellant made no application for such extension, and the respondent is entitled to enforce the rights conferred upon him by the rule. (Shain v. People’s Lumber Co., 98 Cal. 120 .)”

In this case no application was made for an extension of time, and upon the authorities above cited the appeals must be dismissed.

It is so ordered.

McFarland, J., and Temple, J., concurred.

Cases cited

White v. White 112 Cal. 577 Cal. 1896-05-09 p. 498
Shain v. People's Lumber Co. 98 Cal. 120 Cal. 1893-04-08 p. 499