Shoemake v. Carey

A. C. SHOEMAKE et al., Cross-complainants and Respondents, v. DICK CAREY et al., Cross-defendants and Appellants; DOMPE SUPPLY COMPANY, Cross-defendant and Respondent. fn. *

COUNSEL

Sedgwick, Detert, Moran & Arnold and Gant & Gant for Cross- defendants and Appellants.

Zeff, Halley & Price for Cross-complainants and Respondents.

Griffin, Conway & Jones and John P. Jones for Cross-defendant and Respondent.

OPINION

STONE, J.

This is a motion to dismiss appeal as to Dompe Supply Company pursuant to rule 41(c), Rules on Appeal. Appellants Dick Carey and F. H. Woodruff and Son, Inc., stated in their opening brief on appeal: "Dompe Supply Company had judgment against Shoemake and Gnesa, and there is no appeal from that judgment." Upon receipt of the brief containing the foregoing statement, counsel for Dompe Supply attempted to secure a stipulation for dismissal as to it. Being unsuccessful, counsel for Dompe Supply filed this motion to dismiss pursuant to 41(c).

Rule 41(c) of Rules on Appeal provides:

"[Failure to oppose motion] Failure of an appellant to appear and oppose a motion to dismiss an appeal after due service of notice of motion, or to file a written opposition to the motion, may be deemed an abandonment of the appeal authorizing its dismissal. Failure of the adverse party to serve and file written opposition to any other motion may be deemed a consent to the granting of such motion."

[1] The motion to dismiss was duly noticed, no opposition was filed, and no appearance was made at the time the motion was heard. Therefore the appeal as to Dompe Supply Company must be dismissed pursuant to rule 41(c) Rules on Appeal. (Adoption of Baby Williams, 106 Cal. App. 2d 34 [234 P.2d 240].)

The motion to dismiss appeal as to Dompe Supply Company is granted.

Conley, P. J., concurred.

Brown, J., deeming himself disqualified, did not participate.

FN *. This case was appealed under the title, "Hayman v. Shoemake."