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District Court of Appeal, Third District, California.


Civ. 7651.

Decided: May 27, 1949

Joseph A. Brown, Reed M. Clarke, San Francisco, for appellant. Wild, Carlson & Reeve, Fresno, Lafayette J. Smallpage, Stockton, for respondent.

On January 13, 1949, respondent filed in this court a notice of motion to dismiss this appeal, which notice was accompanied by a certificate of the clerk of the trial court in conformity with Rule 42(a) of the Rules on Appeal, and an affidavit of due service upon appellant's counsel. The clerk's certificate shows that on December 7, 1948, appellant's attorneys were notified of the cost of preparing the transcript on appeal and that they made no arrangement for paying such cost. No record has been filed in this court nor has appellant filed any request for relief from default, nor any objection to this motion. On the hearing date before us, March 4, 1949, appellant made no appearance.

Under these circumstances the appeal must be dismissed, not only for failure of appellant to arrange for payment of the cost of the record, but also because, under Rule 41(c) of the Rules on Appeal, such appeal may be deemed abandoned. See Cunningham v. Taylor, 87 Cal.App.2d 701, 197 P.2d 565, and authorities there cited.

The appeal is dismissed.

ADAMS, Presiding Justice.

PEEK and THOMPSON JJ., concur.