Barbour v. Flick , 121 Cal. 425 ( 1898 )

THE COURT.

There are cross-appeals in this case, hy the plaintiff from a part of the judgment, and by the defendant from an order denying Ms motion for a new trial. By stipulation both appeals were to he heard on the same transcript, and defendants’ attorneys prepared and filed it. They also filed their opening brief within thirty days after filing the record here, but plaintiff did not, within that time, file any brief in support of Ms cross-appeal, and defendant has moved under the rule to dismiss it. Plaintiff excuses Ms failure to comply with the rule by showing that he was under the mistaken belief that the stipulation as to the single record for both, appeals also provided that he should print the opemng brief on Ms appeal under the same cover with Ms answer to defendant’s opening brief—which he has done since notice of the motion to dismiss was served. Defendant’s attorneys admit that this method of presenting the cross-appeal is eonvement, and that they would very willingly have consented to it if they had been requested. They also admit that no delay in the hearing of the appeal has been or will be occasioned. Under the circumstances we think it would be too severe a penalty to enforce the rule by dismissing the appeal.

Motion demed.