Reset A A Font size: Print

District Court of Appeal, Fourth District, California.


Civ. 1745.

Decided: January 21, 1936

W. H. Stammer, of Fresno, for appellants. David E. Peckinpah and Harold M. Child, both of Fresno, for respondent.

This is a motion to dismiss the appeal or affirm the judgment.

We have frequently held that such a motion should not be granted where it appears, after examination of the opening brief and the papers filed in support of the motion, that the case cannot be decided without examining the entire record. Brown v. Gow, 126 Cal.App. 113, 14 P.(2d) 322; Ross v. Mahoney, 134 Cal.App. 199, 25 P.(2d) 268; Barr v. Hall (Cal.App.) 49 P.(2d) 1124.

At least two of the points raised on this appeal could not be decided without a complete examination of the entire record. This is virtually conceded by the respondent, whose notice of motion states that the same would be based upon the entire record on this appeal and also upon the entire record in a prior appeal. Moreover, in his argument in support of this motion he goes outside of the opening brief and the moving papers and presents matters which require a study of the entire record.

An examination of the opening brief and the moving papers indicates that the questions here raised call for careful consideration and will require a thorough examination of the evidence, in all of which the court is entitled to the assistance of the respondent.

The motion is denied.

BARNARD, Presiding Justice.

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