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District Court of Appeal, Fourth District, California.


Civ. 2174

Decided: November 18, 1938

Earl Redwine, Dist. Atty., of Riverside, for appellant. Miguel Estudillo, of Riverside, for respondents.

This is a motion to dismiss the appeal or affirm the judgment on the ground that the appeal is frivolous, is taken for delay only, and that the questions presented are so unsubstantial as to need no further argument.

In Rasmussen v. Fresno Traction Co., 11 Cal.App.2d 357, 358, 53 P.2d 1038, this court said: “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, [9 Cal.App.2d 426], 49 P.2d 1124.”

One of the alleged errors on which plaintiff bases its appeal is that the attorney's fee allowed to each owner on dismissal of the condemnation action against such owners is excessive. An examination of the opening brief of plaintiff and the papers filed on this motion satisfies us that to decide the substantiality of that question we must examine the record. Under those circumstances we do not desire to depart from the foregoing rule which we have consistently followed. Ure v. Maggio Bros. Inc., 22 Cal.App.2d 536, 71 P.2d 598; Birkhofer v. Krumm, 24 Cal.App.2d 372, 75 P.2d 82.

The motion is denied.

MARKS, Justice.

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

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