Kampendonk v. American Bonding Co.

Full title: FRED KAMPENDONK et al., Respondents, v. AMERICAN BONDING COMPANY OF…

Court: The Supreme Court of Washington. Department One

Date published: Jun 26, 1940

103 P.2d 1095 (Wash. 1940)

103 P.2d 1095

4 Wash. 2d 378

Opinion

No. 28018.

June 26, 1940.

APPEAL AND ERROR — DISMISSAL — FAILURE TO FILE BRIEFS — CONDITIONAL GRANT OF MOTION. Where the appellant delayed filing its brief until the respondents moved to dismiss the appeal, and by such delay prevented the regular setting of the case, the motion to dismiss will be granted unless the appellant, within ten days, pays into the registry of the court fifty dollars to be remitted to counsel for the respondents as attorneys' fees for services rendered and expenses incurred in making and presenting the motion to dismiss the appeal.

See 3 Am. Jur. 338.

Motion to dismiss an appeal from a judgment of the superior court for King county, Lawler, J., entered November 9, 1939. Granted conditionally.

George F. Hannan, for appellant.

Wright Wright, for respondents.

PER CURIAM.

This cause comes up on motion to dismiss the appeal and affirm the judgment.

From the record, it appears that the judgment was entered in the superior court November 9, 1939, and that notice of appeal was filed December 4th. The transcript was filed in the superior court on February 9, 1940, and in this court on April 10th. The statement of facts was served and filed in the superior court February 2, 1940, and in this court June 11th. Appellant's opening brief was not filed in this court until June 10th — after respondent had moved to dismiss the appeal.

By this delay in filing its brief, appellant has prevented the regular setting of the case at this term of court. Although appellant, since the service of the motion to dismiss, has been willing to stipulate that the case be set, the respondents decline to stipulate because of the undue burden of preparing their brief in the short time remaining before the end of the term.

[1] Under the circumstances, we think respondents were justified in refusing to stipulate for the setting of the case. We feel, however, that the motion to dismiss should not be granted unconditionally. It will be and is hereby granted unless, within ten days from the day of the filing of this opinion, appellant pays into the registry of this court the sum of fifty dollars to be remitted to counsel for respondents as attorneys' fees for services rendered and expenses incurred in making and presenting the motion to dismiss the appeal.