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District Court of Appeal, Fourth District, California.

BUTCHER et al. v. THORNHILL et al.

Civ. 1751.

Decided: December 17, 1935

Lasher B. Gallagher, of Los Angeles, for appellants. Ben W. McLendon and Joseph A. Ball, both of Long Beach, for respondent.

This is a motion to dismiss the appeal or affirm the judgment upon the ground that the questions upon which the decision of the case depends are so unsubstantial as not to need further argument. The motion is made under section 3 of rule 5 of the Rules for the Supreme Court and District Courts of Appeal.

Respondent was injured in an automobile accident in Kern county. Appellants principally rely for a reversal of the judgment upon instructions given by the trial judge which they maintain are incorrect and upon instructions proposed by them which were refused.

The members of this court have repeatedly announced their understanding of the proper application of the rule in question. We have concluded that we should carefully examine the papers filed in support of and in opposition to the motion and appellants' opening brief. If, after doing so, it appears to us that the appeal is without merit the motion should be granted; otherwise it should be denied. We have declined to consider the reporter's transcript or make a general careful investigation of the merits of the appeal on such a motion as it would be necessary for us to repeat this work when the cause is submitted on the merits if the motion be denied. Such procedure would also result in the practical advancement of the case on the calendar under guise of the motion. Thompson v. Boyer, 127 Cal.App. 149, 15 P.(2d) 541; Brown v. Gow, 126 Cal.App. 113, 14 P.(2d) 322.

We have carefully examined the papers used on the hearing of the motion and the authorities cited, together with appellants' opening brief. After doing so, we have reached the conclusion that a decision on the questions presented in appellants' opening brief requires us to carefully review the entire record, including the reporter's transcript of the evidence, and that the questions presented for our decision are not so unsubstantial as to justify us in dismissing the appeal or affirming the judgment at this time.

Motion denied.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.

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