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was

was

striking out this testimony. The hour given by the prosecutrix as that when the rape committed

7:30 o'clock; the field

in ques. tion was located a mile or a mile and a half away from the barn where the rape was alleged to have taken place. There was no contention nor showing that the defendant could not easily have returned to his home and to the barn after this witness left the field. The only value the testimony could have, then, was to show that the defendant was at the field on the night in question between 6 and 6:30 o'clock, and as to that the prosecution made no contrary claim. The prosecutrix herself had stated that her step-father on the night in question was engaged in irrigating.

No error is presented by appellant showing that he has been prejudiced in his right to a fair trial. The judgment and order are affirmed.

JAMES, J.
We concur:

CONREY, P. J.
MYERS, J. pro tem.

Civil No. 2596. Second Appellate District, Division One. December 9, 1918. GILBERT SCHMIDT, Plaintiff and Appellant, v. JOHN E. YOAKUM, Defend

ant and Respondent. Civil No. 2597. Second Appellate District, Division One. December 9, 1918. GILBERT SCHMIDT, Plaintiff and Appellant, V. JOHN E. YOAKUM COM

PANY (a Corporation), Defendant and Respondent.
Appeals from the Superior Court of Los Angeles County-Lewis R. Works,
Judge.

For Appellant-Crouch & Crouch.
For Respondent-Jones & Weller.

In each of these cases the plaintiff appeals from an order granting a motion for a new trial. The only questions presented for determination are included among those considered by this court in Schmidt v. Santa Monica Commercial Company. Civil No. 2588, in which the decision of the court has been this day filed. On the authority of that decision, the orders granting the motions for new trial in the above entitled actions numbered 2596 and 2597 are and each of them is affirmed.

CONREY, P. J.
We concur:

JAMES, J.
MYERS, J. pro tem.

Crim. No. 637. Second Appellate District, Division One. December 9, 1918. In the Matter of the Application of W. J. HITTSON for a Writ of Habras

Corpus. [1] ATTORNEY AT LAW-DISBARMENT-SUBSEQUENT PRACTICE IN JUSTICE'S COURT—CONDUCT NOT CONTEMPT.-An attorney disbarred from practicing "in all the courts of this state" is not guilty of contempt for thereafter appear. ing as attorney in the justices' courts.

Petition for writ of habeas corpus.
For Petitioner-Gesner Williams, W. I. Gilbert.
For Respondent-Frank C. Collier,
Habeas corpus.

Petitioner seeks to be discharged from the custody of

the sheriff of Los Angeles county by whom he is held under a writ of commitment issued by the superior court. The proceeding in which the writ of commitment was issued was one for contempt. On October 2, 1918, by judgment of the superior court, this petitioner was disbarred from practicing as an attorney in all the courts of the state. On October 21, 1918, an affidavit was presented to the superior court wherein the affiant set forth the substance of the disbarment proceeding and deposed further that petitioner, during the month of October, had as attorney commenced five suits in the justices' court of Los Angeles township and had during the same month conducted two examinations of judgment debtors in the same court. With that affidavit as a foundation, the court proceeded to a hearing and adjudged petitioner guilty of a contempt because it appeared that since the entry of judgment of disbarment petitioner had “been practicing in the justice courts". We wish particularly to point out that the accusing affidavit upon which the contempt proceedings were founded contained no statement charging that the petitioner had in anywise held himself out as an attorney at law or done any act, except to file suits in the justices' court and there appear for the two examinations mentioned.

But one question is presented by counsel appearing in this proceeding, that being as to whether a judgment of disbarment, general in its terms, may operate to prevent the accused from appearing as attorney in a justices' court. Section 842 of the Code of Civil Procedure provides as follows: “Parties in justices' courts may appear and act in person or by attorney; and any person, except the constable by whom the summons or jury process was served, may act as attorney." It is, of course, at once conceded that had the petitioner here not pretended to act generally as an attorney at law, but only to appear in the justices' court under the permission given by the section just referred to, and had he been without license as an attorney, no ground would have been afforded for disbarment proceedings. Counsel for respondent, however, suggests that the judgment followed Code of Civil Procedure section 299 and by its terms precluded petitioner (theretofore a licensed attorney) from practicing as attorney in all the courts of the state. The question is as to whether by the proceeding of disbarment provided in sections 289 et seq., Code of Civil Procedure, it is intended that the court by its decree shall be authorized to do more than take away all of the privileges conferred upon the holder of a license to practice law. As we read the sections, they mean nothing more. Referring back to section 277, Code of Civil Procedure, we find that an applicant for admission to practice upon examination, or upon certificate from another state, when admission is allowed, is admitted as attorney and counselor “in all the courts of this state". Section 299, which has already been referred to provides that the judgment of disbarment shall be that the accused “be precluded from practicing as such attorney or counselor in all the courts of this state", using the precise language which is found in section 277, ante, referring to the admission of applicants. Where the phrase is used in the latter connection, it naturally means that the applicant is admitted to practice in all the courts wherein a license is first required. Such certificate in nowise restricts or enlarges the right of a person to appear as attorney for another in a justices' court. If such is the case, we can find no room for plausible argument sustaining the contention that when judgment of disbarment is entered it does more than take away the 'rights granted by the order of admission to practice. Without doubt the legislature would have the right to provide that any person who had been disbarred from the practice of law should be ineligible to appear in a justices' court to represent another, and we venture the suggestion that such legislation is both appro

priate and desirable; and we do not intimate that a justices' court may not possess inherent power to refuse to allow a person to appear as attorney for a litigant where such person is known to be dishonest or of disreputable character. Counsel for respondent has cited a New Mexico decision which seems to sustain his view (State v. Marron, 167 Pac. 9). Insofar as it does serve that purpose, we do not concur in its reason or logic. There is a dissenting opinion in the same case. On the other hand, we find in the case of Danforth v. Eagan (S. D.), 119 N. W. 1021, expressions indicating a contrary view to that expressed by the two judges of the New Mexico court. We have taken this case as it is presented upon the one proposition argued by counsel and illustrated by the facts stated in the affidavit which formed the basis for the contempt proceeding. [1] The case so made, in our opinion, must be resolved in favor of the petitioner. It is ordered that petitioner be discharged from the custody of the sheriir.

JAMES, J.
We concur:

CONREY, P. J.
MYERS, J. pro tem.

Civil No. 2776. Second Appellate District, Division One. December 10, 1918. E. G. BORGMEYER, Plaintiff and Respondent, v. J. B. SOLOMON, Defend

ant and Appellant. [1] APPEAL-TIME TO FILE BRIEFS-DEFAULT-PoWER OF COURT TO GRANT RELIEF.—While the rules of court requiring briefs on appeal to be filed within the time specified undoubtedly confer rights which may be enforced by litigants, yet the rights so conferred are subject to the right and power of the appellate court relieve a party from his default on the ground of mistake, inadvertence, or excusable neglect.

Motion to dismiss appeal from Superior Court of Los Angeles County. Motion for relief from default and for leave to file brief.-Russ Avery, Judge.

For Appellant-Haas & Dunnigan.
For Respondent-Philip Cohen.

This case comes upon respondent's motion to dismiss the appeal for appellant's failure to file brief in time, and appellant's motion to be relieved from his default on the ground of inadvertence and excusable neglect, and for leave to file his brief tendered therewith.

The time for filing appellant's brief, as extended pursuant to stipulation, expired October 22, 1918. Four days thereafter, no brief having been filed, respondent served and filed notice of this motion to dismiss. Appellant's counter-motion for relief is based on affidavits from which it appears that appellant's counsel who was charged with the conduct of this litigation relied upon a clerk in his office to keep him advised of the time when briefs in the pending cases were required to be filed; that the employee who was charged with this duty, through inadvertence, neglected to so inform him respecting this case; and that he was wholly unaware that the time for filing this brief had expired or was about to expire until the notice of motion to dismiss was served. Other facts are stated from which it suffciently appears that appellant was proceeding in good faith with the prosecution of this appeal. There are also affidavits, both by appellant and his counsel, showing that appellant was advised by his counsel and in good faith believes that good grounds for the appeal exist.

[1] The rules of court requiring briefs on appeal to be filed within the time specified undoubtedly confer rights which may be enforced by litigants. (See opinion of this court in Wood v. Mesmer, Civil No. 2570, filed December

10, 1918, and cases there cited.) It is equally certain, however, that the rights so conferred are subject to the right and power of the court, upon a proper showing, to relieve a party from his default on the ground of mistake, inadvertence, or excusable neglect. (Brooks V. Union Trust Co., 146 Cal. 134, 138; Santa Paula Water Works v. Peralta, 5 Cal. Unreported, 779 (42 Pac. 239); Estate of Lakemeyer, 6 Cal. Unreported, 695 [65 Pac. 475].) As was said by the supreme court in Estate of Keating. 158 Cal., at page 115: "There can be no doubt that where such default is made under circumstances which would show good cause for relief under the decisions on that subject in applications under section 473 of the Code of Civil Procedure, whether that section be applicable to the supreme court or not, this court should grant similar relief, allow the transcript to be filed after the time fixed by the rule, and retain the appeal.”

The showing made by the affidavits presented by appellant in support of his motion brings this case fairly within the rule thus laid down.

Respondent's motion to dismiss the appeal is denied, and appellant's motion for leave to file his brief tendered therewith is granted.

MYERS, J. pro tem.
We concur:

CONREY, P. J.
JAMES, J.

Civil No. 2614. Second Appellate District, Division One. December 10, 1918. A. R. McLAREN, Plaintiff and Appellant, v. J. FRED HARDS and BEATRICE

E. HARDS, Defendants and Respondents. 11] APPEAL-ALTERNATIVE METHOD RECORD-INSUFFICIENCY OF BRIEFS-EFFECT.-Upon an appeal under the alternative method the parties must print in their briefs, or in a supplement thereto, such portions of the record as they desire to call to the attention of the court, and where they fail to do this there is no record presented in the manner prescribed by law upon which the appellate court can consider the merits of the appeal.

Appeal from the Superior Court of Los Angeles County-Gavin W. Craig, Judge.

For Appellant-Joseph W. Mowell.
For Respondents-Charles L. Evans.

Plaintiff appeals from a judgment in favor of defendants and from an order denying his motion for a new trial.

Appellant informs us in his brief that this was a creditor's suit under sections 3439, 3441 and 3442 of the Civil Code to avoid and set aside alleged voluntary and fraudulent conveyances from defendant J. Fred Hards to a Mrs. Slatter, and from the latter to defendant Beatrice E. Hards, wife of the first-named defendant. From statements in his brief we gather that appellant predicates his appeal upon claimed insufficiency of the evidence to support certain findings of the court below. The record comes to us under the "alternative method” in typewritten transcripts. Neither the findings nor any part thereof is printed in appellant's brief; nor is there printed any portion of the pleadings framing issues to which such findings would be responsive.

The reporter's transcript covers 133 typewritten pages. The only portion thereof printed in the brief is the following:

"Hards testified on direct examination as follows: Q. What was the consideration of the transfer (to Mrs. Slatter)? A. There was none. Q. What was the property conveyed from Mrs. Slatter to Mrs. Beatrice E. Hards

- consideration for that? A. There was no consideration.

no consideration, do you mean what? A. No monetary (Rep. Tr., p. 66, 1. 8.) Mrs. Hards, on cross-examination, Gollows: Q. Did Mrs. Slatter pay you or Mr. Hards anything .operty? A. No sir. Q. Did you pay her anything for the deed an Pedro lot? A. No sir. (Rep. Tr., p. 99, 1. 14.)” .s apparent that there is nothing here which is necessarily inconsistent

a finding in favor of the defendants upon the question of a valuable insideration, if such an issue was framed and such finding made.

The law with respect to appeals under this method expressly requires that "in filing briefs on said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court”. (Code Civ. Proc., sec. 953c.) This court and the supreme court have frequently pointed out that they cannot be expected to and will not search through typewritten transcripts for matter which parties have neglected to print in their briefs, as this section requires them to do. (See California Savings Bank v. Canne, 34 Cal. App. 768, and cases there cited.) "The law requires that enough must be printed to illustrate the points made and to enable the court to determine those points.” (Id., p. 770.) The appellant here has wholly failed to comply with that requirement of the law.

It seems that the legislature in providing for the so-called "alternative method” of appeal contemplated that the parties should print in their briefs (or in a supplement thereto) so much of the record as under the old method would have been embodied in a bill of exceptions, one difference being that under the new method respondent's amendments to such "bill of exceptions" are not presented until he files his brief. It follows from this that, if appellant fails to present a record which would justify a reversal of the judgment or order appealed from, respondent is not called upon to supplement it by additions thereto, but may stand upon the record so presented, which is apparently what respondent in this case has elected to do.

For this court to depart from its rule of conduct, as indicated in the case above referred to and in many others which might be cited, would be in effect to repeal the code provision above quoted.

[1] There is no record here presented in the manner prescribed by law upon which this court can consider the merits of this appeal. The judgment and order appealed from are affirmed.

MYERS, J. pro tem,
We concur:

CONREY, P. J.
JAMES, J.

Civil No. 2750. Second Appellate District, Division One. December 10, 1918. EARL CHARLTON WOOD et al., Plaintiffs and Respondents, V. JOSEPH

MESMER, Defendant and Appellant. 111 APPEAL--EXPIRATION OF TIME FOR FILING BRIEF-POWER TO EXTEND TIE.-Under rule V of the appellate court, the time for filing brief may be extended after the expiration of the time limited, provided that no notice of motion to dismiss the appeal for failure to file such brief has been pre viously filed.

121. 11.--CONSTRUCTION OF RULE OF COURT.--The rules of court expressly recognize the power of the court to extend the time therein limited for filing briefs, and neither in the rules nor in the statutes is there any provision which expressly or by necessary implication limits that power to those cases wherein the time so limited has not expired.

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