Barnhart v. Conley

California Court of Appeal · Civ. No. 1031. · 1911-10-11 · Published · 119 P. 200 · 17 Cal. App. 230 · 1911 Cal. App. LEXIS 93

ROSE L. BARNHART, Respondent, v. O. C. CONLEY and H. J. CALDWELL, Appellants

Area: civil
Panel: The Court. &#8212 (author)

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion

THE COURT.

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 *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.

Cites, in this corpus

Barnes v. Berendes S.F. No. 2228. · 1903-04-04
McCabe v. Healey Sac. No. 1009. · 1903-04-03

Cited by

Clinton v. Shaw Civ. No. 13810 · 1943-03-16
Deist v. First National Bank Civ. No. 2302 · 1938-09-06
Silva v. Co-operative Dairymen's League Civ. No. 9776 · 1935-03-18
Shanfeld v. Munson Docket No. 392. · 1932-09-02
Berendsen v. Babdaty Civ. No. 4234. · 1923-05-10
Wood v. Mesmer Civ. No. 2750. · 1918-12-10
Pierce v. Employers' Indemnity Exchange Civ. No. 2303. · 1917-02-27