Opinion
Sac. No. 1373.
April 3, 1905.
MOTION to Dismiss an Appeal from an order of the Superior Court of Kings County denying a new trial. M.L. Short, Judge.
The facts are stated in the opinion.
E.T. Cosper, for Appellant.
Dixon L. Phillips, for Respondent.
This is a motion to dismiss the appeal from an order denying the defendant's motion for a new trial, upon the ground that he failed to serve or file his points and authorities within thirty days after filing the transcript in this court.
The transcript was filed January 3, 1905. The service of notice of this motion and of the papers in connection therewith was made upon appellant's attorney on February 4, 1905, and the points and authorities subsequently filed by appellant February 6, 1905. It is provided in rule II (subd. 4) of this court that "Thirty days after filing of the transcript the appellant shall file with the clerk his printed points and authorities, and with it proof of the service of one copy thereof upon the attorney . . . . of each respondent who shall have appeared separately in the superior court"; and subdivision 1 of rule V provides: "If the . . . appellant's points and authorities be not filed within the time prescribed, the appeal may be dismissed on motion, upon notice given. If the points . . . and authorities, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion."
The appellant's points and authorities were not filed within thirty days after filing the transcript, and were not on file when the notice of this motion was given. No order was made or stipulation given extending the time. No unavoidable accident or excusable mistake is shown. Not only this, but no answer or points and authorities are filed here in opposition to this motion.
Rules of court are made for the orderly and proper dispatch of business, and must be enforced. Where a party willfully fails to comply with them his appeal will be dismissed. (Shain v. People's Lumber Co., 98 Cal. 120; McCabe v. Healey, 139 Cal. 30, 32; Brooks v. Union Trust and Realty Co., ante, p. 134, filed February 28, 1905.)
The appeal should be dismissed.
Chipman, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the appeal is dismissed. Van Dyke, J., Shaw, J., Angellotti, J.