Tyner v. Axt , 111 Cal. App. 187 ( 1931 )

[1] This is a motion to dismiss an appeal. The motion is based on the ground that the appellant did not file his brief within the time permitted by the rules of the court. The transcript was filed on October 6, 1930. The time for appellant to file his opening brief expired, therefore, on November 5, 1930. Notice of the presentation of this motion was served and filed December 10, 1930. The motion was noticed for presentation on January 13, 1931, and was presented on that date. On December 12, 1930, appellant's brief was filed. Appellant's attorney has presented and filed an affidavit from which it appears that during the period of his apparent delay he was diligently employed in the trial of various cases. Furthermore, the affidavit shows that the appeal has been taken and presented in good faith and that the delay has not appreciably postponed the hearing of the appeal on its merits. (Fishman v. Silva,108 Cal.App. 121 [291 P. 430]; Righetti v. Monroe, Lyon Miller, Inc., 109 Cal.App. 333 [293 P. 114].)

The motion should be denied and it is so ordered.

Barnard, P.J., and Marks, J., concurred,