Skip to main content


District Court of Appeal, Fourth District, California.

OLENDER et al. v. BURNSIDE et al.

Civ. 2283

Decided: July 01, 1939

Claude L. Rowe, of Fresno, for appellants. Robert M. Wash and G.L. Aynesworth, both of Fresno, for respondents.

This is a motion to dismiss the appeal or place the case on the “Ready for Submission Docket”, on the ground that the appeal is taken for delay only and is frivolous, and that the grounds of appeal presented in appellants' opening brief are so unsubstantial as not to need further argument.

In the argument made in support of the motion there are frequent references to the transcript. We cannot decide the motion without examining the record on appeal.

This court has announced and has firmly adhered to the policy that on such a motion as this we will not go beyond appellant's opening brief and the papers used on the motion; that if it is necessary, in order to decide the motion, to examine the entire record on appeal, the motion to dismiss will be denied. Rasmussen v. Fresno Traction Co., 11 Cal.App.2d 357, 53 P.2d 1038; Ure v. Maggio Bros. Co., 22 Cal.App.2d 536, 71 P.2d 598; Birkhofer v. Krumm, 24 Cal.App. 2d 372, 75 P.2d 82; McNew v. Mulcahy, 24 Cal.App.2d 476, 75 P.2d 516.

In accordance with this policy, thus announced, the motion to dismiss in this case cannot be granted because, in order to properly consider it, we would have to examine the entire record on appeal. We also should have the assistance of a brief by respondents in considering the merits of the appeal.

The motion is denied.

MARKS, Justice.

I concur: BARNARD, P.J.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law

Docket No: Civ. 2283

Decided: July 01, 1939

Court: District Court of Appeal, Fourth District, California.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard