Murphy v. Krumm , 21 Cal. 2d 846 ( 1943 )

PETERS, J. pro tern.

— I dissent. I agree with the majority opinion that, as a matter of law, it is no answer to a motion to dismiss to comply with rule V after the motion is made. But there can be no doubt that the court in which the appeal is pending has the power, upon good cause, to waive the default. The appeal was within the jurisdiction of the appellate court. The discretion vested by the rule is vested in that court. The Supreme Court has the power to review the determination of the appellate court, but the question is not whether the Supreme Court would have dismissed had its power been invoked, but whether the appellate court, as a matter of law, abused its power. In my opinion the showing here, while weak, was sufficient to permit the appellate court to exercise its discretion. That being so the holding of the appellate court is binding on the Supreme Court.

Traynor, J., concurred.

Appellants’ petition for a rehearing was denied May 10, 1943. Carter, J., and Traynor, J., voted for a rehearing.