While the motion to dismiss the appeal and the printed transcript were filed upon the same day, none of appellant's rights were saved thereby, for by rule V of this court the filing of the transcript can only defeat the motion when it is filed before the notice to dismiss is served, and such was not the fact in this case. (Carter v. Paige , 77 Cal. 64; Chapman v. Bank of California , 88 Cal. 419.) Again, it is contended that the printed transcript was in the office of Wells, Fargo & Co., in transit to the clerk of this court for filing, when the motion to dismiss was served, and for that reason the motion should be denied. Placing the document in the office of Wells, Fargo & Co. was not the equivalent of filing, and it cannot be considered as filed when so placed.
The Supreme Court has never given the rule a different construction or departed from the policy first announced of requiring a showing of good cause before excusing the appellant's default, even when the brief or transcript, although not on file at the time of the giving of the notice, is filed or tendered for filing prior to the hearing of the motion. ( Raisch Improvement Co. v. Arata, (1924) 193 Cal. 573 [ 226 P. 399]; Coats v. Coats, (1905) 146 Cal. 443 [ 80 P. 694]; McCabe v. Healey, (1903) 139 Cal. 30 [ 72 P. 359]; Shain v. People's Lumber Co., (1893) 98 Cal. 120 [32 P. 878]; Pio v. Aigeltinger, (1892) 97 Cal. 81 [31 P. 895]; Chapman v. Bank of California, (1891) 88 Cal. 419 [26 P. 608]; Hoyt v. San Francisco etc. R.R. Co., (1891) 87 Cal. 610 [25 P. 160, 1066]; Carter v. Paige, (1888) 77 Cal. 64 [19 P. 2]; Heinlen v. Southern Pac. R.R. Co., (1884), 65 Cal. 304 [4 P. 15]; Page v. Latham, (1882) 60 Cal. 601; Smith v. Arnold, (1882) 60 Cal. 234.
The sufficiency of such showing is a question to be determined by the court. ( Carter v. Paige, 77 Cal. 64 [19 P. 2].) Where no sufficient excuse is shown, an appeal may be dismissed even though the brief is filed two days after service of the notice of motion ( Coats v. Coats, 146 Cal. 443 [ 80 P. 694])." [1] In this case the transcript on appeal was filed October 18, 1932.
The final opinion of the Supreme Court, filed May 27, 1932, is reported in 215 Cal. 555 [ 11 P.2d 864]. In response to the motion to dismiss, appellant cites authorities in which the Supreme Court and appellate courts have excused the delay in some instances, to wit: Gould v. Stafford, 77 Cal. 64 [18 P. 879]; Robinson v. Robinson, 158 Cal. 117 [ 110 P. 112]; Grant v. Lamori, 71 Cal. 329 [12 P. 238]; Chapman v. Bank, 88 Cal. 419 [26 P. 608]. [1] We have examined these authorities but fail to see where they meet the situation here and fail to see where further delay can help the situation here.
If the brief is not filed until after notice of motion to dismiss has been given, unless a reasonable excuse for delay is shown, the appeal will be dismissed. The sufficiency of such showing is a question to be determined by the court ( Carter v. Paige, 77 Cal. 64 [19 P. 2]). Where no sufficient excuse is shown, an appeal may be dismissed even though the brief is filed two days after service of the notice of motion ( Coates v. Coates, 146 Cal. 443 [ 80 P. 694]). In passing upon the sufficiency of the showing made in the case of Chapman v. Bank of California, 88 Cal. 419 [26 P. 608], the court said:
The sufficiency of such showing is a question to be determined by the court. ( Carter v. Paige, 77 Cal. 64 [ 19 P. 2]). Respondent cites Shain v. People's Lumber Co., 98 Cal. 120 [ 32 P. 878], and McCabe v. Healy, 139 Cal. 30 [ 72 P. 359], to support his contention that a motion to dismiss the appeal must be determined by the facts existing at the time the notice of motion was filed and served. These cases state the rule that applies where no sufficient excuse for the delay is shown.
[1] Where a delayed transcript has been filed prior to the hearing of the motion to dismiss, but not until after notice given of motion to dismiss, such filing constitutes no defense to the motion, with a possible exception when the facts establish the existence of reasonable grounds excusing the delay. ( Carter v. Paige, 77 Cal. 64 [19 P. 2].) Appellant has made no showing, within this rule, of legal excuse for his delay. ( Erving v. Napa Valley Brewing Co., 16 Cal.App. 41 [ 116 P. 331].)
If filed after the notice is given, the motion is not defeated, but circumstances to excuse the default may be shown by affidavit." ( Carter v. Page, 77 Cal. 64, [19 P. 2].) It is clear that the appellants did not intend to abandon their appeal.