Dorland v. McGlynn

45 Cal. 18

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,559
• Status: Published

Opinion

By the Court:

This cause was dismissed during the first week of the present term upon ex parte motion made by the respondent under the fourth rule of the Court, it appearing by the certificate of the Clerk below that the appellant had failed to file the transcript within the time required by Rule 2. The appellant now moves, upon motion and affidavit, to restore the appeal under Rule 3. The ground upon which the motion is based is that the attorney of the appellant was ignorant of the rules of this Court as adopted in May, 1871, which shortened the time of filing the transcript to the period of forty days, repealing in that respect the rules of January, 1870, by which sixty days had been allowed. It is unnecessary to consider whether or not the ignorance of counsel as to the requirements of the present rules of the Court (which have been in force for upwards of one year) could be considered in any case or under any - circumstances to be a sufficient ground to restore an appeal regularly dismissed for non-observance of these rules; for Rule 3, under which the motion is made, requires the party moving to restore the appeal to proceed “ upon good cause shown,” and in Hogan v. Mead, 25 Cal. 598, we held that upon such a motion it should be shown by affidavit that in the opinion of counsel at least there are substantial errors in the record which ought to be corrected by the Court. There being nothing disclosed in the affidavit upon this point, the motion must be denied, and it is so ordered.