Lady v. Worthingham

WILLIAM ELLIS LADY, Appellant, v. CATHERINE A. WORTHINGHAM, Respondent.

COUNSEL

William Ellis Lady in pro. per., and Webster Hazlehurst for Appellant.

Howe & Finch and Horowitz & McCloskey for Respondent.

OPINION

McCOMB, J.

These are motions:

(1) To strike the opening brief of appellant on the ground that it does not present each point separately under an appropriate heading showing the nature of the question or point to be made as required by the last paragraph of section 2, rule VIII, Rules for the Supreme Court and District Courts of Appeal [18 Cal. 2d 11; Larmac Consolidated Index to Constitution and Laws of California [1941] 1623);

(2) To dismiss or affirm the appeal on the ground that the appeal is sham, frivolous, and unsubstantial.

These are the facts: [55 Cal. App. 2d 397]

[1] August 17, 1942, appellant filed in this court a document denominated "Opening Brief on Behalf of Plaintiff and Appellant." This brief contained the following headings only:

(1) Preliminary statement.

(2) Statement of the case.

(3) Argument.

(4) Disqualification of the trial judge.

(5) Conclusion.

I

Section 2, rule VIII, Rules for the Supreme Court and District Courts of Appeal reads as follows:

"The brief or petition must present each point separately under an appropriate heading, showing the nature of the question to be presented or the point to be made." (18 Cal. 2d 11; Larmac Consolidated Index to Constitution and Laws of California [1941] 1623.)

It has been repeatedly held that, in order to comply with the requirements of the foregoing rule, appellant's assignments of error should take the form of propositions, which if sustained would lend substantial support to appellant's request for a reversal of the judgment of the lower court. (Chichester v. Bank of America, 51 Cal. App. 2d 146, 148 [124 P.2d 99]). It is obvious that appellant's brief in the instant case does not meet the requirements of the foregoing rule. Therefore, pursuant to section 4 of rule VIII, supra, the brief should be stricken and appellant allowed a reasonable time within which to file an opening brief meeting the requirements of the court rule.

II

[2] The second motion must be denied, for the reason that we assume that appellant will not file a brief which is sham, frivolous, or unsubstantial.

For the foregoing reasons appellant's opening brief is stricken from the record and appellant is allowed twenty days from the date of the filing of this opinion within which to file an opening brief which will comply with the rules of this court.

The motion to dismiss or affirm is denied.

Moore, P. J., and Wood (W. J.), J., concurred.