McCowen v. Trumann — 22 Cal. App. 361

Majority

p. 361

[Civ. No. 1107.

Third Appellate District.

June 16, 1913.]

HALE McCOWEN, Respondent, v. GEORGE TRUMANN , et al., Appellants.

Headnote

Appeal—Failure to File Brief and Transcript Within Time—Dismissal.—A motion to dismiss an appeal will be entertained where the transcript and the appellants’ brief were not filed herein within the time prescribed by paragraphs 1 and 4, respectively, of rule 2 of the supreme court.

APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge.

The facts are stated in the opinion of the court.

Keith C. Eversole, for Appellants.

Preston & Preston, and Hale McCowen, Jr., for Respondent.

It appears from the certificate of the clerk of the superior court of Mendocino County that plaintiff recovered judgment in said superior court on September 6, 1912, against defendants; that, on October 9, 1912, defendants filed notice of appeal and, on the same day, filed an undertaking on appeal; that the reporter’s transcript on ap

p. 362

peal, prepared under section 953a of the Code of Civil Procedure, was settled on or about November 18, 1912, and defendants’ attorneys have received a duly certified clerk’s transcript.

A motion to dismiss the appeal is made on the ground “that the transcript and appellants’ brief were not filed herein within the time prescribed by paragraphs one and four respectively of rule 2 of the rules of the supreme court, effective March 18,1912.” [160 Cal. xlii, 119 Pac. ix].

Neither transcript nor brief of appellants was on file in this court when the motion was filed nor has either been since filed herein.

The appeal is dismissed.

Chipman, P. J. Hart, J. Burnett, J.