Haines v. Commercial Mortgage Co.

THE COURT.

Respondents move to dismiss the appeal and to affirm the judgment and order appealed from. The motions are identical, except as to the relief requested, and respectively specify as grounds therefor that the several points urged upon the appeal have heretofore been determined by this court adversely to the appellants' contentions, that the appeal is frivolous and prosecuted for purposes of delay, and that the appellants have not printed in their opening brief or any supplement thereto, as required by section 953c of the Code of Civil Procedure, any part of the record sufficient to justify a reversal of the judgment and order.

[1] The motion to dismiss must be denied, for to determine whether the appeal is frivolous and sham and to ascertain whether the points urged by the appellants have already been decided by this court on a former appeal would require an examination of the record and the appeal on its merits. Such examination will not be undertaken upon a motion of this character. [2] However, it appears that the motion to affirm for failure to comply with the provisions of section 953c, supra, is good. The appellants' opening brief, consisting of but six pages, makes no attempt to set forth any part of the record. It contains but an outline of the appellants' several contentions upon appeal from which it is difficult to even ascertain the facts giving rise to the litigation. Upon the authority of Dahlberg v. Dahlberg,202 Cal. 295 [260 P. 290], the motion to affirm is granted.

The motion to dismiss the appeal is denied. The judgment and order appealed from are, and each is, affirmed.