KIM v. CHINN ET AL (1941)

District Court of Appeal, First District, Division 1, California.

KIM v. CHINN ET AL.

Civ. 11930.

Decided: September 26, 1941

A. B. Bianchi, of San Francisco, for appellants and defendants. Manwell & Manwell, of Marysville, and John L. McCarthy, of Watsonville, for respondent and plaintiff.

The matters set forth in the application for the writ of supersedeas are legally insufficient to justify the issuance of the writ, especially in that they do not show that appellant's failure to comply with section 948 of the Code of Civil Procedure is excusable. Willis v. Paul, 116 Cal.App. 733, 3 P.2d 339; Williams v. Borgwardt, 115 Cal. 617, 47 P. 594; Nonpareil Mfg. Co. v. McCartney, 143 Cal. 1, 76 P. 653; Reliance Acceptance Corp. v. Lundblade, 96 Cal.App. 371, 274 P. 360. It is ordered, therefore, that the application be and the same is hereby denied.

In response to the order heretofore made under the provisions of section 1107 of the Code of Civil Procedure (as added in 1941), respondent herein, besides submitting points and authorities in opposition to the issuance of the writ, prematurely filed therewith a demurrer and an answer to the application, consequently all legal and factual matters set forth in said demurrer and answer have been disregarded, and the clerk of the court is directed to withdraw the same from the files and return them to respondent.

PER CURIAM.

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