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District Court of Appeal, Fourth District, California.


Civ. 1754.

Decided: December 21, 1935

Lindsay & Gearhart, of Fresno, for appellant. B. M. Benson, of Fresno, for respondent.

Respondent's motion to dismiss the appeal herein and to affirm the judgment was made on the single ground that appellant had failed to file in this court points and authorities within the time prescribed by section 4 of rule 1 of the rules of this court. At the time notice of the motion for dismissal was given the motion was well taken as no brief in support of the appeal was then on file. However, prior to the time specified in the notice as the date on which the motion would be presented appellant's points and authorities were filed.

Rule 5 of the rules of this court provides that if points and authorities, though not filed within the time prescribed, are filed at the time notice of motion for dismissal is given, that fact shall be sufficient answer to the motion. This rule has been extended to include those cases wherein an appellant's opening brief is on file at the time the motion for dismissal of an appeal is heard, although such brief had not been filed at the time notice of the motion was given. Righetti v. Monroe, Lyon & Miller, Inc., 106 Cal.App. 346, 289 P. 650; Fishman v. Silva, 108 Cal.App. 121, 291 P. 430; Tyner v. Axt, 111 Cal.App. 187, 295 P. 97; Toth v. Metropolitan Life Ins. Co., 113 Cal.App. 55, 297 P. 564; Snodgrass v. Hand, 125 Cal.App. 265, 13 P. (2d) 769; Smith v. Taecker, 127 Cal.App. 78, 15 P. (2d) 193; North v. Evans, 136 Cal.App. 434, 28 P.(2d) 938.

The motion to dismiss the appeal is therefore denied.

JENNINGS, Justice.

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

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