Righetti v. Monroe, Lyon & Miller, Inc.

STURTEVANT, J.

This is a motion to dismiss an appeal. The motion is based on the ground that the appellant did not file its points and authorities within the time allowed by law. The transcript was filed February 26, 1930. Notice of the presentation of this motion was served April 7, 1930. The notice was accompanied with an affidavit of the attorney for the respondent. In that affidavit it is stated that no order has been made and that no stipulation has been made extending the time to file said points and authorities. The motion was noticed for presentation on May 12, 1930, and on that day it was presented. Prior to that time, to wit, on May 3, 1930, the points and authori ties were printed and filed and were on file when the motion was presented. The appellant’s attorney has served, filed and presented an affidavit from which it appears that he was most diligently employed during the period of his apparent delay; that he did not neglect this particular piece of work; but that he was overworked and could not get the points and authorities on file at an earlier date. 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. We think the motion should be denied and it is so ordered.

Nourse, P. J., and Spence, J., concurred.