Chiafullo v. Schwab — 13 Cal. App. 152

Majority

p. 152

[Civ. No. 719.

Third Appellate District.

April 1, 1910.]

FRANK CHIAFULLO, by His Guardian ad Litem, ANTONIO CHIAFULLO, Respondent, v. MOSES SCHWAB, Appellant.

Headnote

Appeal—Dismissal—Failure to File Transcript—H on appearance of Appellant—Presumption—Vexatious Appeal for Delay—Damages.—Upon, a motion to dismiss an appeal for failure to file the transcript within the time limited, and for damages for a vexatious appeal for delay, where, after the service of the appellant with notice of the motion, the appellant fails to respond, and no excuse appears for the delay, it must be assumed that the purpose of the appeal was as stated in the motion of respondent, and the appeal will be dismissed, with damages assessed against the appellant.

MOTION to dismiss an appeal from a judgment of the Superior Court of Tuba County. Eugene P. McDaniel, Judge.

The facts are stated in the opinion of the court.

Brittan & Raish, for Appellant.

W. H. Carlin, for Respondent.

This is a motion to dismiss the appeal on the ground “that more than forty days have elapsed since the taking of said appeal and no transcript on appeal has been prepared, served or filed,” and respondent also asks the court to assess damages for the “taking of a vexatious appeal for delay.” The notice of appeal was given and filed on January 13, 1910, and an undertaking was filed on the same day. Nothing further seems to have been done in the prosecution of the appeal and no excuse is offered for the delay. The notice of the motion to dismiss was given on March 6th and appellant did not appear at the hearing. Under the circumstances we must assume that the purpose of appellant in taking the appeal was as stated by respondent.

The appeal - is therefore dismissed, with damages against appellant assessed at $30.

Chipman, P. J., and Hart, J., concurred.