KENNEDY v. BERG

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District Court of Appeal, Third District, California.

KENNEDY v. BERG.

Civ. 5571.

Decided: March 24, 1936

Everts, Ewing, Wild & Everts, of Fresno, for appellant. C. Ray Robinson and James D. Garibaldi, both of Merced, for respondent.

Upon the filing of appellant's opening brief, respondent makes this motion to dismiss the appeal or affirm the judgment upon the following grounds: First, that appellant had failed to comply with the rules of this court respecting the form of his brief; and, second, that the appeal was taken for delay, and the questions upon which the decision rests are so unsubstantial as not to merit further argument.

As to the first ground, leave has been granted appellant to amend his opening brief to comply with this objection. The amendment has been made, and such ground is now removed from our consideration.

As to the second ground, respondent devotes some ten pages of his brief on this motion to establish the fact that appellant was mistaken when, in his opening brief, he contended that the evidence upon the question of contributory negligence was without conflict. Such contention by an appellant has always been deemed to have been one involving the merits of the controversy. The transcript of the testimony taken at the trial contains some 120 pages. Under such circumstances we cannot say that the decision is “so unsubstantial as not to need further argument,” (quotation from section 3, rule V of Supreme Court and District Courts of Appeal).

The motion is denied.

TUTTLE, Justice pro tem., delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.

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