Hayman v. Shoemake

• Decision Date: 01 February 1962
• Citation: 199 Cal.App.2d 796,18 Cal.Rptr. 916
• Court: California Court of Appeals Court of Appeals
• Parties: Louis HAYMAN and George Covert, Plaintiffs and Respondents, v. A. C. SHOEMAKE et al., Defendants and Respondents, v. Dick CAREY and F. H. Woodruff and Son, Inc., Appellants, Dompe Supply Company, Respondents. Civ. 86.

Page 916

18 Cal.Rptr. 916

199 Cal.App.2d 796

Louis HAYMAN and George Covert, Plaintiffs and Respondents, v. A. C. SHOEMAKE et al., Defendants and Respondents, v. Dick CAREY and F. H. Woodruff and Son, Inc., Appellants, Dompe Supply Company, Respondents.

Civ. 86.

District Court of Appeal, Fifth District, California.

Feb. 1, 1962.

Sedgwick, Detert, Moran & Arnold, San Francisco and Gant & Gant, Modesta, for appellants.

Griffin, Conway & Jones and Jack R. Jones, Modesta, for respondent Dompe Supply Co.

T. W. Martz, Modesta, for respondents Hayman and Covert.

Zeff, Halley & Price, Modesta, for respondents A. C. Shoemake, Walter Gnesa, Francis Gnesa and Henry Gnesa.

STONE, Justice.

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.'

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., concurs.

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