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District Court of Appeal, Fourth District, California.


Civ. 2958.

Decided: June 12, 1942

Ernest Clewe, of Oroville, and U. F. Lewis, of Redlands, for plaintiffs. Theo. G. Krumm and R. Bruce Findlay, both of San Bernardino, for defendants.

This is a motion by plaintiffs to dismiss the appeal of defendants on the following grounds: (1) Failure to pay the filing fee within the time prescribed by law; (2) Failure to file transcripts on appeal within the time required; (3) Failure to file the opening brief within the time required.

Plaintiffs have appealed from the portions of the judgment against them and defendants have appealed from the portion of the judgment adverse to them.

The parties stipulated that both appeals might be heard on a single record and a single set of briefs. The clerk's and reporter's transcripts were filed in this court on October 4, 1941, upon the filing fee of plaintiffs having been paid.

Under date of October 27, 1941, the parties entered into a stipulation, approved by this court, giving defendants until November 30, 1941, in which to file their brief, the plaintiffs thirty days in which to answer and file their opening brief, and defendants thirty days in which to file their reply brief.

The notice of motion to dismiss the appeal was filed on May 18, 1942, specifying that the motion to dismiss would be made before this court on June 9, 1942. A certificate of the county clerk on motion to dismiss was filed on May 28, 1942.

Defendants paid their filing fee on May 28, 1942, and filed their opening brief on June 5, 1942, so that when the motion to dismiss was made in open court on June 9th, the filing fee had been paid and the brief had been filed.

Under the rules announced in the following cases the motion to dismiss must be denied. See Toth v. Metropolitan Life Ins. Co., 113 Cal.App. 55, 297 P. 564; North v. Evans, 114 Cal.App. 714, 300 P. 893; Snodgrass v. Hand, 125 Cal.App. 265, 13 P.2d 769; Lisle v. Ragle, 10 Cal.App.2d 758, 52 P.2d 608; Graybiel v. Consolidated Ass'ns, Ltd., 14 Cal.App.2d 547, 58 P.2d 665; Steiner v. Davis, 21 Cal.App.2d 334, 69 P.2d 184; Hall v. Wolford, 22 Cal.App.2d 537, 71 P.2d 596; Southern Counties Thrift Co. v. Rairdon, 43 Cal.App.2d 149, 110 P.2d 679.

The motion is denied.