Olender v. Burnside

California Court of Appeal

Olender v. Burnside

92 P.2d 499, 33 Cal. App. 2d 609, 1939 Cal. App. LEXIS 278

CourtCalifornia Court of Appeal

DecidedJuly 1, 1939

DocketCiv. No. 2283

StatusPublished

This text of 92 P.2d 499 (Olender v. Burnside) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Olender v. Burnside, 92 P.2d 499, 33 Cal. App. 2d 609, 1939 Cal. App. LEXIS 278 (Cal. Ct. App. 1939).

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Opinion

MARKS, J.

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 Pac. (2d) 1038]; Ure v. Maggio Bros. Co., 22 Cal. App. (2d) 536 [71 Pac. (2d) 598] ; Birkhofer v. Krumm, 24 Cal. App. (2d) 372 [75 Pac. (2d) 82] ; McNew v. Mulcahy, 24 Cal. App. (2d) 476 [75 Pac. (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.

Barnard, P. J., concurred.

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MARKS, J.

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 Pac. (2d) 1038]; Ure v. Maggio Bros. Co., 22 Cal. App. (2d) 536 [71 Pac. (2d) 598] ; Birkhofer v. Krumm, 24 Cal. App. (2d) 372 [75 Pac. (2d) 82] ; McNew v. Mulcahy, 24 Cal. App. (2d) 476 [75 Pac. (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.

Barnard, P. J., concurred.

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92 P.2d 499, 33 Cal. App. 2d 609, 1939 Cal. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olender-v-burnside-calctapp-1939.

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