Troy Etc. Co., Ltd. v. Drivers' Etc. Co. , 13 Cal. App. 115 ( 1910 )

Motion to dismiss appeal from judgment upon the ground that appellant failed to file its points and authorities within the time prescribed by the rules of this court. (Subd. 4, rule II, [78 Pac. vii].)

The transcript was filed December 6, 1909, and the period of thirty days allowed to appellant for filing its points and authorities expired on January 5, 1910. The points and authorities, however, were not filed until February 23, 1910. The reason for the delay, as appears from appellant's affidavit filed in opposition to the motion, was that respondent's attorney died on December 30, 1909, at which time appellant had six days within which to file its points and authorities. Upon the death of an attorney all further proceedings against the party for whom he was acting as attorney are stayed until such time (unless he of his own motion appoint another attorney) as the adverse party shall by written notice require him to appoint another attorney or appear in person. (Code Civ. Proc., sec. 286.) By virtue of the provisions of this section all proceedings in the prosecution of the appeal were suspended from the date when respondent's attorney died until such time as respondent voluntarily, or in response to proceedings instituted by the adverse party, as provided by said section 286, appointed another attorney or appeared personally. On February 16, 1910, respondent selected another attorney, notice of the appointment of whom was on the same day, together with a motion to dismiss the appeal, served upon appellant. This action on the part of respondent in appointing an attorney rendered it unnecessary for appellant to give the notice prescribed in section 286, supra. (Nicol v. San Francisco,130 Cal. 288, [62 P. 513].) Appellant, therefore, had six days remaining from and after February 16, 1910, within which to file its points and authorities. This period expired on February 22d, which, being a holiday (Code Civ. Proc., sec. 10), should be excluded in the computation (Code Civ. Proc., sec. 12), thus extending the time to February 23, 1910, on which date the points and authorities were filed. Under the circumstances of this case they were filed in time.

The motion to dismiss is denied.

Allen, P. J., and Taggart, J., concurred.