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District Court of Appeal, Fourth District, California.


Civ. 2101.

Decided: June 10, 1937

C. Arden Gingery and E. W. Miller, both of Los Angeles, for appellant. Hert & Withington, of San Bernardino, for respondent.

The respondent herein has moved to dismiss the appeal on the ground that no record on appeal has been filed within the time required by the rules of this court.

Notice of the motion for dismissal was filed in this court on May 17, 1937, and was noticed for hearing on June 8, 1937. On May 19, 1937, the clerk's transcript on appeal was filed here, and on June 7, 1937, appellant's opening brief was filed. In respondent's notice of the motion for dismissal of the appeal it is stated that the action wherein this appeal is pending was decided on a demurrer interposed by respondent to appellant's third and supplemental complaint and that no evidence was submitted to the trial court. It is apparent therefore that no record on appeal other than the clerk's transcript now on file will be required for the determination of the appeal. The filing of the clerk's transcript prior to the date appointed for the hearing of the motion for dismissal constitutes a sufficient answer to the motion. Jaques v. Board of Supervisors, 22 Cal.App. 627, 135 P. 686; Snodgrass v. Hand, 125 Cal.App. 265, 13 P.(2d) 769; Sampson v. Boysen, 5 Cal.App.(2d) 282, 42 P.(2d) 704.

The motion to dismiss the appeal is therefore denied.

JENNINGS, Justice.

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

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