Rubio v. Nye & Nissen, Inc.

California Court of Appeal

Rubio v. Nye & Nissen, Inc.

35 P.2d 195, 140 Cal. App. 46, 1934 Cal. App. LEXIS 484

CourtCalifornia Court of Appeal

DecidedJuly 20, 1934

DocketCiv. No. 9410

StatusPublished

Cited by1 cases

This text of 35 P.2d 195 (Rubio v. Nye & Nissen, Inc.) 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

Rubio v. Nye & Nissen, Inc., 35 P.2d 195, 140 Cal. App. 46, 1934 Cal. App. LEXIS 484 (Cal. Ct. App. 1934).

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Opinion

NOURSE, P. J.

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 the 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 [47]*47necessary 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.

Sturtevant, J., and Spence, J., concurred.

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NOURSE, P. J.

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 the 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 [47]*47necessary 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.

Sturtevant, J., and Spence, J., concurred.

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Bluebook (online)

35 P.2d 195, 140 Cal. App. 46, 1934 Cal. App. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubio-v-nye-nissen-inc-calctapp-1934.

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