RUBIO v. NYE NISSEN (1934)

District Court of Appeal, First District, Division 2, California.

RUBIO et al. v. NYE & NISSEN, Inc., et al.

Civ. 9410.

Decided: July 20, 1934

Charles V. Barfield, of San Francisco, for appellants. John F. O'Sullivan, Vincent W. Hallinan, and James J. Roach, all of San Francisco, for respondents.

Respondents are the mother and minor brother of I. Rubio, who was killed in a collision with a truck operated by appellants. After the time for filing their brief had expired, the respondents filed a motion to dismiss and affirm under section 3 of rule V, Rules for Supreme Court and District Courts of Appeal. Accompanying their motion they filed a fifteen-page brief arguing the merits of the appeal. On the hearing of the motion they refused to submit the appeal on appellants' opening brief and, after oral argument, filed a reply brief of ten pages. Appellants' appeal rests on two general grounds–excessive damages and erroneous instructions–and to decide either point it is necessary to examine the record. When it does not appear on the face of the appellants' brief that section 3 of the rule applies, the respondent must make some showing by affidavit or otherwise than by argument on the merits of the judgment appealed from. Here the motion is plainly an attempt on the part of the respondents to procure an advance on the calendar of a possibly meritorious appeal.

The motion is denied.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.

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