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Barnhart v. Conley

17 Cal. App. 230 Court Second Appellate District. Decision date 1911-10-11 Docket Civ. No. 1031 English

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p. 230
[Civ. No. 1031.
Second Appellate District.
October 11, 1911.]
ROSE L. BARNHART, Respondent, v. O. C. CONLEY and H. J. CALDWELL, Appellants.

Headnote

Appeal — Dismissal — Failure to File Points and Authorities in Time—Rule op Court.—Under subdivision 4 of rule II of the supreme court, the points and authorities of appellants must be filed within thirty days after the filing of the transcript, unless the time is extended by stipulation or order of court and where no extension of time appears, and the time allowed by the rule has elapsed, with
p. 231
out the filing of any points and authorities, the respondent is entitled, on motion therefor, to a dismissal of the appeal.
Id.—Bights Conferred by Bulb Enforceable.—The rule requiring the points and authorities of the respective parties to be filed within a specified time after the filing of the transcript confers rights which may be enforced by litigants.
Id.—Determination of Respondent’s Bight Fixed by Motion After Default—Subsequent Filing not Restricting Bight.—The determination of respondent’s right to dismiss the appeal after the default of the appellants is controlled by the facts existing at the time when the notice of the motion to dismiss was given; and the subsequent filing of points and authorities for appellants had no effect to restrict such right.
MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Chas. Monroe, Judge.
The facts are stated in the opinion of the court.
V. T. Watkins, and Watkins & Blodget, for Appellants.
Gray, Barker, Bowen, Allen, Van Dyke & Jutten, and N. A. Bailie, for Respondent.

The transcript in this case was filed April 1, 1911. Appellants filed no points or authorities until after _ June 9, 1911, at which time a motion to dismiss the appeal on account of failure to file such points and authorities was duly served and filed. Thereafter, on June 26, 1911, appellants filed their opening brief. The affidavit in opposition to respondent’s motion is insufficient to justify the court in refusing to grant the motion. Rule II, subdivision 4, [144 Cal. xli, 78 Pac. vii], of the supreme court provides that the points and authorities must be filed within thirty days after the filing of the transcript, and, in the absence of stipulation, twenty days’ additional time may be granted by the court, good cause being shown therefor. No stipulation extending time or order of court in that regard appears'. The rule above quoted, requiring the points and authorities on behalf of the respective parties to be filed within a specified time after the filing of the transcript, confers rights which may be enforced by litigants. (McCabe v. Healey, 139 Cal. 32 , [ 72 Pac. 359 ].) Respondent, therefore, possesses the right to have this appeal dis

p. 232
missed. The determination of such right being controlled by the facts existing at the time the notice of motion was given, the subsequent filing of points and authorities had no effect to restrict such right.

The motion to dismiss the appeal must be granted, and it is accordingly ordered.

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