LOWE v. CITY OF SAN DIEGO

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District Court of Appeal, Fourth District, California.

LOWE et al. v. CITY OF SAN DIEGO.

Civ. 1159.

Decided: October 15, 1934

C. L. Byers, City Atty., Gilmore Tillman, Asst. City Atty., and James J. Breckenridge, Deputy City Atty., all of San Diego, for appellant. F. L. Richardson and Edgar B. Hervey, both of San Diego, for respondents.

This is an action for damages for injuries alleged to have been received because of the defective or dangerous condition of a street. In its opening brief the appellant raised several questions of law and several questions as to the sufficiency of the evidence. The respondents moved to dismiss the appeal or affirm the judgment under rule V, section 3, on the grounds that the appeal is frivolous, taken for delay only, and that the questions presented are so unsubstantial as not to need further argument. This motion of the respondents was accompanied by a typewritten brief of 44 pages, citing authorities and fully arguing the merits of the appeal.

It appears from the opening brief and also from the brief filed by the respondents in support of this motion that a careful study of the record will be required, in which the court should have the benefit of the respondents' assistance. As was said in Smith v. Rothschild (Cal. App.) 34 P.(2d) 1050: “When this motion is made for the purpose of advancing the hearing of an appeal on the merits, or to avoid preparation of a brief under the rules, it should be denied. The motion in this case is of that character.”

The motion is denied.

BARNARD, Presiding Justice.

We concur: MARKS, J.; JENNINGS, J.