Lamet v. Miller

9 P. 669, 68 Cal. 521, 1886 Cal. LEXIS 480

• Court: California Supreme Court
• Decided: February 17, 1886
• Docket: No. 11177
• Status: Published

Opinion

McKee, J.

— On the 4th of August, 1885, respondent’s attorney served on the attorney of appellants notice that he would, on the 15th of August, move to dismiss the appeal taken in this case, on the ground that no transcript had been filed within the time prescribed by the rules of the court.

After service appellants’ attorney filed the transcript before the day noticed for the hearing of the motion. Respondent’s attorney knew of the filing of the transcript on the day it was filed, and he did not bring on his motion for hearing on the day for which it was noticed, or at any other time during the session of the court. There was no stipulation by the attorneys to •postpone the hearing of the motion, and no order by the court continuing it to a future time; but in the month of October respondent’s attorney served appellant with notice that he would, on the 3d of November, 1885, bring to a hearing the motion to dismiss the appeal, which had been noticed for the 15th of August.

A motion to dismiss an appeal should be made on the day noticed for the hearing, or at the first opportunity during the session of the court. If not so made the motion lapses, and it cannot be revived at a subsequent session. Motion denied.

Ross, J., and McKinstby, J., concurred.