Respondent has moved to dismiss the appeal upon the ground that appellant's opening brief had not been filed within the time prescribed. The notice of motion to dismiss was made and filed on the fourteenth day of July, 1923, and on the eleventh day of August, 1923, two days before the date set for hearing thereof, appellant filed his opening brief. The motion is covered by Coats v. Coats, 146 Cal. 443 [80 P. 694], andBerendsen v. Babdaty, 62 Cal.App. 185 [216 P. 385]. In the former case the brief was on file at the time the motion was granted, but it had been filed a few days after the time for filing *Page 593 had expired. In this case the delay was much longer. Judgment was recovered in the superior court by respondent on January 27, 1922, and notice thereof was given the same day. On February 4th of the same year a notice of motion for a new trial was given, and on April 27th following the motion was denied. On May 18th following a notice of appeal to the supreme court was filed, though under the constitution the action was one within the jurisdiction of the district court of appeal. This necessitated an order of the supreme court transferring the cause to this court for decision. The transcript, prepared under section 953a of the Code of Civil Procedure, was filed on December 27, 1922, the delay being caused by appellant's failure to pay the required fees therefor. The time for filing appellant's brief expired on January 26, 1923, but was continued to February 27th of the same year by three different stipulations given by counsel for respondent upon the express assurance of appellant's counsel that his brief would be filed within the time allowed. No further time for the filing of said brief since the 27th of February, 1923, was requested or allowed, and the only excuse for the failure to do so is that the attorney of record for appellant was sick. It appeared, however, at the oral argument that the sickness did not cover the full period of the delay and that another attorney was attending to some of the legal business of the attorney of record, and no showing was made why this attorney or some other could not have filed the brief in this case, or at least obtained a stipulation or order protecting the time to file.
It is true that when such delays have occurred through inadvertence or excusable neglect such as would be the basis for a motion for relief under section 473 of the Code of Civil Procedure, if such section applied to the appellate court, the court has exercised its discretion in granting relief from the default. (Estate of Keating, 158 Cal. 109, 115 [110 P. 109];Yolo etc. Co. v. Edmands, 45 Cal.App. 410, 414 [187 P. 755].) [1] The showing which appellant has made in this case would not justify relief under that section of the code.
Appeal dismissed.
Langdon, P. J., and Sturtevant, J., concurred. *Page 594