Majority
p. 10[Civ. No. 2942. Third Appellate District. March 25, 1925.] A. L. WAUGAMAN, Respondent, v. A. L. RICHARDSON et al., Appellants.
Headnote
[1] Appeal—Delay in Filing Brief—Belief from Default—Insufficient Excuse.—On a motion to dismiss an appeal on the ground that appellants failed to file their points and authorities within thirty days after the filing of the transcript, a sufficient ground for relieving appellants from their default is not shown where the affidavit filed by one of the counsel for appellants merely shows that his associate is district attorney and affiant is deputy district attorney, that they had been extremely busy with official business of the county and had neglected the preparation of appellants’ ■brief but had given it such time as was possible between the performance of acts of official duty, that the time was inadvertently allowed to pass without an application for an extension of time, and that they did not think counsel for respondent would take advantage of their default, and no reason is stated why the brief was not prepared and filed or an application made for an extension of time during the five weeks succeeding appellants’ first default and prior to the filing of notice of motion to dismiss.(1) 3 C. J., p. 1442, n. 67.
1. See 2 Cal. Jur. 741.
MOTION to dismiss an appeal from the Superior Court of El Dorado County. George H. Thompson, Judge. Appeal dismissed.
The facts are stated in the opinion of the court.
Abe Darlington and Henry S. Lyon for Appellants.
Thomas Maul for Respondent.
The transcript on appeal herein was filed in this court on the 29th of December, 1924. March 7, 1925, the respondent filed notice of motion to dismiss the appeal on the ground that appellants had failed to file their'points and authorities within thirty days after the filing of the transcript. Appellants’ brief was thereafter filed on the 21st of March. Respondent’s motion was heard and submitted March 23d. At the hearing the appellants applied
p. 11
for relief from their default. [1] In support of the application for relief, the affidavit of one of the attorneys for appellants was presented. Affiant therein states that his associate is district attorney of El Dorado County and the affiant is deputy district attorney; that “during all of the time since the filing of the said transcript on appeal both affiant and his said associate have been extremely busy with official business of said county of El Dorado, but had not neglected the preparation of appellants’ brief but had given to it such time as was possible between the performance of acts of official duty; that at the time their period of time for the filing of appellants’ opening brief expired said attorneys were both busy with official duties and the time was inadvertently allowed to pass without an application for an extension of time, but said attorneys did not believe that respondent’s attorney would move to dismiss the appeal without giving some notice to them that he intended to insist that the brief should be immediately filed, or filed within some given time. ’ ’ No reason is stated why the brief was not prepared and filed or an application made for an extension of time during the five weeks succeeding appellants’ first default. Neglect of the character of that stated in the affidavit has never been held sufficient ground for relieving a party from his default. (Weinmann v. Factor, 63 Cal. App. 592 [ 219 Pac. 461 ]; Berendsen v. Babdaty, 62 Cal. App. 185 [ 216 Pac. 385 ], and cases cited.)
Appellants’ application for relief from their default is denied and the appeal is dismissed.
Hart, J., and Plummer, J., concurred.
Cases cited
- Weinmann v. Factor 63 Cal. App. 592 p. 11
- Berendsen v. Babdaty 62 Cal. App. 185 p. 11